EAC Policy Harmomization-Draft Report(2)

8/3/2019 EAC Policy Harmomization-Draft Report(2)

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS AND ACRONYMS ...................................................................................................................iv

EXECUTIVE SUMMARY ................................................................................................................................................... v

1.0 INTRODUCTION................................................................................................................................................ 1

1.1 Background ....................................................................................................................................................... 1

1.2 Objectives of the assignment .................................................................................................................................. 21.3 The Approach and Methodology .......................................................................................................................... 2

1.4 Outline of the Report........................................................................................................................................... 32.0 OVERVIEW OF THE LAKE VICTORIA BASIN ...................................................................................................... 4

2.1 Introduction........................................................................................................................................................ 4

2.2 Main Features of the Lake Victoria Basin .............................................................................................................. 4

3.0 ANALYSIS AND REVIEW OF THE EXISTING NATIONAL POLICIES, LAWS AND REGULATIONS .......................................... 6

3.1 Kenya National Policy and Legal Framework ......................................................................................................... 6

3.1.1 Kenya Water Related Policies ............................................................................................................................ 6

3.2 Tanzania National Policy and Legal Framework......................................................................................................... 19

3.2.1 Review of Water Related Policies ............................................................................................................. 19

3.2.3 Institutional Framework for management of water resources .............................................................................. 28

3.3 Uganda National Policy and Legal Framework .......................................................................................................... 323.3.1 Review of Water Related Policies ................................................................................................................... 32

3.3.2 Review of water related laws and regulations ................................................................................................. 36


3.4 Rwanda National Policy and Legal Framework ......................................................................................................... 41

3.4.1 Review of Water Related Policies ................................................................................................................... 41

3.4.2 Review of water related laws and regulations............................................................................................. 45


3.5 Burundi National Policy and Legal Framework........................................................................................................... 48

3.5.1 Water Related Policies .................................................................................................................................. 48

3.6 Summary of Key Issues and Challenges Facing Lake Victoria Basin ..................................................................... 49

3.7 Comparative analysis of water policies, laws and regulation (SWOC Analysis) ....................................................... 51

3.7.1 SWOT Analysis of the Existing Policy, Legal and Regulations ..................................................................... 52

4. REVIEW OF EXISTING REGINAL AND INTERNATIONAL TREATIES, PROTOCOLS, CONVENTIONS AND AGREEMENTS............................................................................................................................................................................. 54

4.1 East African Community .................................................................................................................................... 54

4.1.1 The East African Treaty 1999 ................................................................................................................... 54

4.1.2 Areas of Cooperation .............................................................................................................................. 54

4.1.3 Objectives and key Principles of the Treaty ............................................................................................... 54

4.1.4 Commitments of the Partner States .......................................................................................................... 55

4.2 Protocol for Sustainable Development of Lake Victoria Basin ................................................................................ 55

4.2.1 Preamble ............................................................................................................................................... 55

4.2.2 The parties to the Protocol ....................................................................................................................... 57

4.2.3 The Scope of the protocol ........................................................................................................................ 57

4.2.4 Principles ............................................................................................................................................... 57

4.2.5 Rights and Obligations ............................................................................................................................ 57

4.2.6 Review on mainstreaming of protocol for sustainable development of lake Victoria Basin into Water relatedPolicies, Laws and Regulations ................................................................................................................ 58

4.3 Treaties and Conventions.................................................................................................................................. 59

4.3.1 The Position of the Partner States in regards to the Existing Colonial Agreements ........................................ 59

4.3.2 The 1929 Nile Water Agreement .............................................................................................................. 61

4.3.3 The Agreement between the United Kingdom and Belgium regarding water rights on the Boundary betweenTanganyika and Ruanda-Urundi, 1934 ...................................................................................................... 61

4.3.4 The 1929 Nile Water agreement between Egypt and Sudan ........................................................................ 62

4.3.5 The 1949 and 1953 Agreements relating to the construction of the Owen Falls dam ...................................... 63

4.3.6 The Vienna Convention on the Law of Treaties 1969. ................................................................................. 63



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4.2.7 The 1993 Agreement between Ethiopia and Egypt. .................................................................................... 64

4.3 Transboundary Water Resources Management ................................................................................................... 66

4.3.1 Introduction ............................................................................................................................................ 66

4.3.2 Treaty Law ............................................................................................................................................. 68

4.3.3 UN Convention on the Law of Treaty......................................................................................................... 69

4.3.4 Treaties on International Watercourses ..................................................................................................... 71

4.3.5 Customary International Law and the Contribution of the Learned Society .................................................... 71

4.3.6 Enforcement, Compliance and Dispute Resolution ..................................................................................... 72

4.3.7 Overall Lessons Learned and Best Practices ............................................................................................. 72

5. REVIEW OF THE EXISTING CAPACITY OF NATIONAL AND LOCAL INSTITUTIONS FOR THE MANAGEMENT OFTRANSBOUNDARY WATER RESOURCES ................................................................................................................... 75

5.1 Kenya National Water Sector Institutional Capacity .................................................................................................... 75

5.2 Tanzania National Water Sector Institutional Capacity................................................................................................ 75

5.3 Uganda National Water Sector Institutional Capacity.................................................................................................. 75

5.4 Rwanda National Water Sector Institutional Capacity ................................................................................................. 76

5.5 Burundi National Water Sector Institutional Capacity .................................................................................................. 76

5.6 Strength and weaknesses of institutional framework for management of water resources .................................................. 76

5.7 Institutional Capacity Needs to Address identified weaknesses .................................................................................... 76

6.0 REVIEW OF THE REGIONAL AND NATIONAL INSTITUTIONAL ARRANGEMENTS FOR THE IMPLEMENTATIONOF THE PROPOSED HARMONISED POLICIES, LAWS AND REGULATIONS ..................................................... 77

6.1 Regional Institutions............................................................................................................................................ 776.1.1 Lake Victoria Basin Commission................................................................................................................... 77

6.1.2 Lake Victoria Fisheries Organization............................................................................................................... 79

6.1.3 Proposed Mechanisms for enhancing National and Regional Institutional arrangement............................................... 79

7.0 REVIEW OF THE EXISTING PARTICIPATION OF COMMUNITIES AND OTHER STAKEHOLDERS IN THE MANAGEMENTOF TRANSBOUNDARY WATER RESOURCES ......................................................................................................... 80

7.1 Regional Level................................................................................................................................................... 80

7.2 International and Regional agencies ....................................................................................................................... 81

7.3 National and Local Level ...................................................................................................................................... 81

7.4 Potential Roles of communities and other stakeholders in implementation of the proposed policies, laws and regulations ........ 81

7.5 Gender Mainstreaming ........................................................................................................................................ 82

8.0 TOWARDS HARMONISED POLICIES, LAWS AND REGULATIONS FOR TRANSBOUNDARY WATER RESOURCEMANAGEMENTS.............................................................................................................................................. 83

8.1 Introduction ....................................................................................................................................................... 838.2 Harmonization Principles...................................................................................................................................... 84

8.3 Building Blocks for Harmonized Policies, Laws and Regulations ............................................................................ 86

8.3.1 Building Block 1: Cooperation in water resources management and development ......................................... 86

8.3.2 Building Block 2: Sustainable water resources development and management......................................................... 90

8.3.3 Building Block 3: Water for environment and ecosystem sustainability .......................................................... 96

8.3.4 Building Block 4: Water Quality Management and Pollution Control........................................................................ 99

8.3.5 Building Block 4: Water Quality Management and Pollution Control ........................................................... 101

8.3.6 Building Block 5: Security from water-related disasters ............................................................................. 103

8.3.7 Building Block 6: Water resources information, management and exchange ............................................... 105

6.4.8 Building Block 7: Institutional framework for water resources management ................................................. 107

8.3.9 Building Block 8: Stakeholder participation, awareness creation and capacity building ................................. 108

8.3.10 Building Block 9: Research and Development .......................................................................................... 110

8.3.11 Building Block 10: Financing integrated water resources management ....................................................... 1108.4 Follow up actions.............................................................................................................................................. 112

REFERENCES ............................................................................................................................................................. 114



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List of Figures

Fig 1: Map showing the Lake Victoria and its catchment areas (Source WEMA, 2009) .......................................... 4 Figure 2. New institutional setup of the Ministry of Water and Irrigation after the Water Sector Reforms in Kenya ....... 16 Figure 3 Institutional Framework ...................................................................................................................... 31

List of Tables

Table 1 Functions and Responsibilities for water Resources Management in Tanzania ...................................... 29

Table 2 Functions and Responsibilities for water Resources Management in Rwanda ....................................... 46



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LIST OF ABBREVIATIONS AND ACRONYMS

ALGAK Association of Local Government Authorities of KenyaBWBs Basin Water BoardsCOWSOs Community Water Supply OrganizationsCSOs Civil Society Organizations

CFA Cooperative Framework AgreementCBOs Community Based OrganizationsDANIDA Dennish International Development AgencyEIA Environmental Impact AssessmentEAC East African CommunityEFA Environmental Flow AssessmentIWRM Integrated Water Resources ManagementLVBC Lake Victoria Basin CommissionMDGs Millennium Development GoalsMNRT Ministry of Natural Resources and TourismMoLG Ministry of Local GovernmentMOE Ministry of Education

MAFC Ministry of Agriculture, Food Security and CooperativesMOH Ministry of HealthMOA Ministry of AgricultureNAEP National Agricultural Extension PolicyNAWAPO National Water PolicyNSGRP National Strategy for Growth and Reduction of PovertyNEMC National Environment Management CouncilNWB National Water BoardNAFA National Forests AuthorityNILE COM Nile Committee of MinistersNELSAP Nile Equatorial Lakes Subsidiary Action ProgrammeNBI Nile Basin Initiative

NEMA National Environment Management AuthorityNGOs Non-Governmental OrganizationsNAEP National Agricultural Extension PolicyOAU Organization of African UnityPPP Public Private PartnershipPFM Participatory Forest ManagementRPSC Regional Policy Steering CommitteeRNRA Rwanda Natural Resources Authority RDAs Regional Development AuthoritiesSIDA Swedish International Development AuthorityTANAPA Tanzania National Parks AuthorityUNCED United Nations Conference on Environment and Development

UNDP United Nations Development AuthorityWPC Water Policy CommitteeWRD Water Resources DivisionWSRSC Water Sector Reform Steering CommitteeWRUA Water Resources Users AssociationWSSAs Water Supply and Sanitation AuthoritiesWRM Water Resources MAnagementWSRSC Water Sector Reform Steering CommitteeWRD Water Resources Division



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EXECUTIVE SUMMARY

Introduction

Lake Victoria and other water resources in the basin have experienced severe threats that are impacting negatively

on the socio-economic and intrinsic values, contributing to annual losses amounting to millions of dollars. Given thevarious types of potentially competing uses the Lake Victoria and other water resources in the basin are supporting,their sustainable management poses a challenging task. Although these resources require appropriate policyinterventions, such as the ones proposed for regulating releases from the lake, their management also requiresharmonised laws and regulations.

Objective of the study

The overall objective of the study is to harmonise policies, laws and regulations governing utilization of water resources in the Lake Victoria Basin among the EAC Partner States.

Main Building Blocks

To achieve these goals of a regional harmonized policy, legislation and institutional framework, 10 Building Blockswere adopted, these are:

1) Cooperation in water resources management and development2) Sustainable water resources development and management3) Water for environment and ecosystem sustainability4) Water Quality Management and Pollution Control5) Security from water-related disasters6) Water resources information, management and exchange7) Institutional framework for water resources management

8) Stakeholder participation, awareness creation and capacity building9) Research and Development10) Financing integrated water resources management.

National Policies Laws and Regulation, and institutional frameworks pertaining to the process of harmonization wereanalyzed and reviewed based on the Building Blocks. Key issues and challenges were identified, as well as reviewof international treaties and protocols as well as regional organizations.

Summary of Key Issues and Challenges Facing Lake Victoria Basin

The Lake Victoria Basin is endowed with a variety of natural resources which are the main stay of community‟slivelihood. However these resources are currently under increasing pressure and thus their survivals are in jeopardy.

Some of the pressures facing the natural resources in the Lake Victoria Basin include over exploitation of resources,losses of habitats and biodiversity, increased water pollution, habitat degradation and climate change.In order sustainable water resources management to be attained in the basin; concerted efforts are required toaddress the challenges and major issues of concerns facing the basin. Here under are some of the issues andchallenges which need to be seriously addressed in order to attain the envisaged sustainable water resourcesmanagement in the basin.

Controlling pollution: Pollution is one of the major challenges facing the Lake Victoria Basin. The situation isaccelerated by poor farming practices which are responsible for soil erosion and thus water pollution and siltation of



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water bodies. Improving farming practices to control pollution. Activities related to cutting of trees and other vegetation covers detract the ecological system responsible for filtering mechanisms. When this ecological system isdisturbed, the land and environment in general is prone to degradation.

Pollution of water bodies is also due to inappropriate use of agrochemicals, discharge of wastes and effluents intowater bodies. Existence of alien invasive species is another factor which lead to pollution of water bodies. The

species are responsible of affecting food webs of fish and other aquatic organisms. Controlling the alien invasivespecies is one of the major issue to be addressed.

Enhancing good governance: Partner countries need to strengthen enforcement of laws and regulations so as torealize the intended objectives. Enhancing good will also strength rule of law and thus corruption and malpractices atall levels of riparian states and local governments will be minimized. This will result into adequate transparency andaccountability in public decision-making.

Poverty: Poverty is another challenge facing the residences in the basin. It is estimated that more than half of thelake basin population is living on an income of less than 1 USD per day and relying heavily on subsistenceproduction. In addition there is high level of illiteracy and low skills and lack of socio-economic incentives to meet thechallenges of water related management and development. Furthermore mortality rates are high due to various

diseases such as, tuberculosis and waterborne diseases like malaria, typhoid and bilharzias. It is also apparent thataccess to health care services is inadequate and health facilities are not well equipped.

Inadequate human and financial capacities: This is also one of the major challenges facing water resourcemanagement in the Lake Victoria basin. Although it is true that always there is resource scarcity, the situation in thebasin is more serious since there is acute inadequate capacity to plan, implement and monitor water resourcesmanagement and development activities. It is beyond reasonable doubt that investing in the development of humanand institutional capacity is very important to enhance effective planning, implementation and monitoring of water resources management activities. Equally important to the aforesaid capacity is to have sustainable mechanism for soliciting financial resources to implement the planned activities.

Sustainable allocation of water resources to various water needs: This is another challenges facing

management of water resources management in the basin. The major concern issue is how best to allocate water for various economic activities and for sustaining the environment and other aquatic ecosystems.

Data and information exchange: Despite the fact the protocol for sustainable development of Lake Victoria Basin,Treaty for establishing East African Community and other regional agreement emphasize the need of sharing andexchanging data and information as a strategy for improving planning of water resources management activities, thepractice has shown that partner states are not sharing and exchanging data and information for their partner consumption. This is a major challenge that needs to be addressed critically.

Climate change: Climate change is another of the emerging issue of concern which need great attention in the basinif sustainable management of water resources has to be attained. Climate change has been responsible in foodinsecurity and other catastrophes in the basin. Currently there are inadequate coping strategies to mitigate the

impacts related to climatic change.

Security from water-related disaster: Occurrence of water related disasters leaves many people and their properties in situation which takes time to recover. Availability of precautionary measures is very important as apreparedness mechanism to occurrence of water related disasters especially during this era of climatic changecatastrophes. However currently there are inadequate mechanisms for protection from flood and drought; prediction,planning and management of natural disasters as well as provisions for dam safety management



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Inadequate understanding of the values and functions of the basin ecosystems: Many stakeholders‟ residing inthe basin has poor limited understanding on the values and functions of the basin ecosystem and this result to poor management of the resources therein. Better understanding of the values and functions of the basin ecosystemswould enable stakeholders to understand the socio-economic importance of environmental conservation and thuswould facilitate to have scientific decision making regarding the use of environmental resources in the basin

Other issues of concerns: Limited capacity to enforce legislations, inadequate and overlaps of sectoral provisions,inadequacy of legal provisions to address environmental and natural resources management issues, majority of stakeholders particularly at grassroots have limited awareness of environmental laws, conflicts in the nationalpolicies, laws and regulations in the management of transboundary ecosystems.

SWOT Analysis of the Existing Policy, Legal and Regulations

Strengths

(i) All countries have water related policies, laws and regulations(ii) Existence of expertise and knowledge on national and regional programme planning and

implementation

(iii) Existence of national authorities with specific mandates related to water resource management(iv) Experience in transboundary cooperation framework under Nile Basin Initiatives and East Africa

Community through the Lake Victoria Basin Commission(v) Existence of sectoral policies with their associated laws and regulations(vi) Existence of integrated water resource management strategies in partner states(vii) Existence of participation framework for community and other stakeholders in implementation of water

related management interventions(viii) Existence of EAC and NBI legal and institutional framework(ix) Existence of programmes for harvesting, storage and use of rain water as coping strategies to climatic

change(x) Existence of water use associations at community level(xi) Existence of educational and research institutions in the region

Weaknesses

(i) Inadequate funds allocated to water resource management by governments(ii) Inadequate institutional capacities at national, regional/province, district and local levels(iii) Inadequate sharing of important data on management of water resources(iv) Limited regional focuses on water resource management issues(v) Weak enforcement of laws(vi) Transboundary water resources management policy, legal and institutional frameworks not well

elaborated other than for Lake Victoria and Policy statements(vii) Multiple agencies with no clear framework of operations and thus creates conflicts and coordination

challenges

(viii) Inadequate innovative research activities on integrated water resource management(ix) Inadequate advocacy capabilities by civil society organization on water resource management

Opportunities

(i) Existence of EAC and Lake Victoria basin legal and institutional framework(ii) Existence of interested donors to work in the basin



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(iii) Interests of the international community in attaining MDGs targets on integrated water resourcesmanagement

(iv) Potential mutual socio-economic benefits from joint win-win development interventions in the basin(v) Common legal history evidenced in similar laws and the common law background facilitate

harmonization process

Threats/Challenges

(i) Adequate prioritization of transboundary water resources management cooperation among ripariancountries

(ii) Management of alien invasive species in lake Victoria basin and other water bodies(iii) Controlling of watershed degradation(iv) Development of effective climate change mitigation measures(v) Accelerated destruction of water resource ecosystems.(vi) How best to carry out environmental flow assessment(vii) Delay in finalizing an agreement on the Nile Basin to address transboundary Nile Water resources

policy and institutional framework, holistically, creating risks of desegregated and disjointed actions(viii) Have sustainable funding sources for water resource management activities

(ix) Strengthen information sharing among partner states(x) Strengthening capacity of local community groups so as to bring positive impact on water resource

management(xi) Put in place effective mechanism for natural disaster and dam safety management(xii) Effective capacity building programme to enhance implementation of water resource management(xiii) Advocacy on integrated water resource planning to enhance sustainability of water resources(xiv) Enhance proper communication to avoid mistrust among partner state members(xv) Effective laws and regulations enforcement.

Proposed Policy Directions for each Building blocks

Building Block 1: Cooperation in water resources management and development

Economic integration from the use of transboundary water resources

Water resources shall be developed and managed in an integrated manner to contribute to regionaland national economic integration and development on the basis of balance, equity and mutual benefitfor all riparian countries. In implementing this policy the reference point shall be the Shared Vision andthe Protocol for Sustainable management and Development of the Lake Victoria Basin.

Partner States shall endeavour to promote and exploit opportunities for joint water resourcesdevelopment in shared watercourses to maximize benefits from the use of common transboundarywater resources and consolidate regional cooperation.

Promote awareness of the people to understand the issues involved and the associated positive andnegative impacts in order to cooperate.

Water resources and inter-sectoral cooperationPromote proper communication /Awareness as an important tool to inform the people to understandissues in order to cooperate and obtain broad-based suport, and generation of broad-basedpartnerships.

Regional and national institutions shall ensure the collaboration of all affected sectors in themanagement and development of water resources to achieve the goals of regional integration,upholding the principle of equitable utilization, aiming at poverty eradication enhancing economicgrowth and sustainability.



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Communication and collaboration

Establish and institutionalize of two way communications between and among sectors, national and regionalinstitutions and transboundary water resources management. Relevant Basins or Catchments should bestrengthened to play day-to-day agreed activities.

Develop and implementation of data and information sharing protocols.

Promote publication dissemination of data and information to general public on the state of water resources

and its use on regular basis.Develop regional and implementation of research findings.

Conflict management mechanisms

Promotion of transparent system of sharing information, costs and benefits that aim at buildingconfidence and trust among the partner States.

Establish mechanisms to resolve the existing and future conflicts among the various entities mandatedto manage components of water resources.

Promote incentive mechanisms for resolving water resource use conflicts.

Provide regional stakeholder forum with diverse constituencies to share ideas and generate consensuson their priorities and interests to build confidence and trust.

Uphold the principle of international cooperation on matters related to the utilization of transboundarywater resources in order to mitigate conflicts, which may include the obligation not to cause significantharm to co-riparian, and notification and information sharing.

Benefit sharing and equity consideration

Promote equitable allocations of transboundary water resources that aim at enhancing sharing of benefits.

Promote dialogues at the different levels from trasnboundary, national and local level; to ensuresustained progress and achievement of goals and objectives set out in the EAC Treaty and Protocol for sustainable management and Development of the Lake Victoria Basin.

There is need to develop and promotemanagement tools for assessment, negotiation and sharing of benefits.

Promote mechanisms for increasing awareness of for regional stakeholders on benefits and sharing of benefits.

Building Block 2: Sustainable water resources development and management

Water for Socio-Economic Development (water for food security, energy security, industrial security, water supply, sanitation and hygiene, etc)

Partner states shall consider water as both (i) an economic good, which supports cross-sectoralregional economic integration and development, and shall be conserved, developed and managed toprovide economic benefits, and (ii) a social good that is essential to human survival and social well-being and for poverty reduction.

Partner states shall consider, when allocating water between states, economic sectors and users shalleconomic benefits that is balanced with social obligation and environmental requirements and theobligation to protect an conserve the water resources.

In managing and developing the water resources of the Lake Victoria Basin, Partners States shallconsider the concept of comparative advantage in water availability as a means of promoting intra-regional trade and balancing national water budgets in a sustainable manner for the benefit of theregion‟s population.

When allocating water for socio-economic needs Partner States will uphold the following policies:



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Water Supply, sanitation and hygiene: Ensuring sustainable access to safe water supply for basichuman needs in adequate quantity and quality. Water for basic human needs receives highest priorityover any other allocations, water allocation for productive activities to poor and marginalisedcommunities in rural and peri-urban to alleviate poverty and ensure balanced development, andfacilitation of the provision of sustainable access to adequate sanitation for all rural, peri-urban and

urban households which is integrated into the provision of water supply services. Public awareness, aswell as hygiene education and practice should be integrated in the provision, operation andmaintenance of water and sanitation facilities.

Water for Food Security: Partner States shall promote the attainment of regional food security rather by developing those areas which have comparative advantage for rain-fed and irrigated (both smalland large scale) agriculture through optimizing the use of water resources through integrated water resources management framework. This should also aim to increase production of food and cashcrops in rural areas for sustainable livelihoods and poverty reduction through promotion of affordableand sustainable techniques for small-scale irrigation. While promoting the use of water for food andcash crop production, Partner States will promote measures to increase water use efficiency, andprovide economic incentives for efficient use of water.

Water for livestock watering and for maintenance of grazing land : shall receive adequate considerationin water resources allocations at regional, national and local levels.

Water for Energy Production: Partner states will collaborate in optimizing the potential for hydro-electricity generation with a view of providing cheaper and more environmentally friendly sources of electrical energy for household and industrial uses. This will include development of both large scale,and small-scale hydropower to enhance rural electrification.

Water for Industrial Production: Water for industrial purposes will be allocated considering its economicvalue.

Water for Sports and Recreation: Water for sports and recreation will be accorded due considerationwhen allocating water for the various competing demands.

Development and management of water resources by river basin approach

In shared water resources Partner States will plan, develop and manage water resources by adopting a river basin or watercourse approach. Subsequently, Partner States jointly will prepare and implement integratedriver basin management and development plans with full involvement of affected stakeholders, promoteconjunctive use of surface and groundwater resources.

The plans so jointly developed will be the basis for negotiations of water allocations between Partner Statesbased on agreed based on equitable and reasonable mechanisms, with consideration of the position of theLake Victoria Basin within the wider Nile so as to avoid undue conflicts.

Partner states will ensure that shared water resources and the water uses upon them will be regulatedthrough as a system of water rights/permits applicable at national level as stipulated in the agreedharmonized Regulations .

Integrated Water Resources planning approach

Transboundary water resources planning will be done on the basis of water basins using an integratedmulti-sectoral approach and cross-cutting nature of the resource, involving stakeholders and which willconsider requirements for bio-diversity and human health.



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Partner States shall promote joint planning and implementation of development projects and programmeswithin their within their shared watercourses in transparent manner and notify each other and/or engageother watercourse States through agreed dialogue mechanisms, where such other water course States arenot proponents of the projects.

Water conservation and demand management

Partner States will adopt a Demand Responsive Approach to water resources management will be introducedthrough the use of demand management approaches together with water conservation measures as a fundamentalrequirement for integrated planning and management of transboundary water resources.

Development of dams

Promote integrated planning, development and management of dams in order to optimise the use of thewater resources, maximise derived benefits (such as hydropower, tourism, flood control, irrigation, water supply) and jointly address both positive and negativeexternalities.

Promote the participation of all key stakeholders in decision-making in the process of dam development.

Partner states will jointly prepare and negotiate on operating rules for dams on shared watercourses with aview of to optimise the socio-economic and environmental benefits in an equitable manner.

Water allocation and water permits authorization

Promote equal and fair procedures when allocating water so that all social and economic activities are ableto maximize their capacities. The objective being to realize efficient water uses and conservation whileimproving productivity in all socio-economic activities and maintenance of the environment.

Priority uses on transboundary water courses will be water for basic human needs and for sustaining theenvironment will attain highest priority, followed by water to meet social-economic needs which will besubject to agreed criteria and time to time revisions.

Streamlining of environmental water requirements in the water allocation, permitting system, planning anddesigning and decision making.

Building Block 3: Water for environment and ecosystem sustainability

Water allocation for the environment/sustaining aquatic ecosystems Proposed Policy Direction

Implement water resource management practices that will focus on preventing negative environmentalimpacts of human activity, ensuring that water is used beneficially and efficiently, and ensuring that water related activities aim at enhancing or causing least detrimental effect to the natural environment.

Promote Environmental flow assessment (EFA) as a management tool that can assist the Basin Water Board to meet the challenges of balancing the diverse needs for water between the amount of water thatcan be withdrawn from a river for the different human uses and the amount of water that the river needs tosufficiently maintain ecosystems through multi-sector approach.

Prepare national inventories on the condition and extent of wetlands, floodplains and riparian ecosystems,as a basis for ensuring their long term protection.

Water allocation to sustain environmental flows should be mainstreamed in the water allocation systemhaving determined actual needs.

Addressing alien invasive speciesPartner States will work individually and collectively to control the alien invasive species.

Water source protection

Uphold the principle of the protection and preservation of the ecosystems of tranboundary watercoursewithin the Lake Victoria Basin;



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Uphold and promote the principle of community of interest in an international watercourse whereby allStates sharing an international watercourse system have an interest in the unitary whole of the system.

Climate change

Develop capacity, Human resources and Institutional level, to cope with climate change and extremeevents, including climate change analysis is included in planning for development

projects/programmes.Promote science-policy dialogue to communicate research findings on climate change.

Focus on water security, which requires sound water resources management and development,balance between hard and soft strategies, manage demand as well as increase supply and encouragerainwater harvesting.

Infrastructure investments, and in particular storage, will be essential in many places in the region.

Building Block 4: Water Quality Management and Pollution Control

Water quality monitoring and assessment Water quality monitoring and assessment will be undertaken systematically so as to identify extent and status of thequality of the transboundary water resources so that problems are detected early and remedial actions taken timely.

Water quality standards (receiving water quality standards, effluent discharge standards)

Member States uphold common minimum standards of water quality in shared watercourses and poolavailable resources for their maintenance.

Promote Environmental Impact Assessments (EIAs) for projects planned to utilize on transbounary water resources.

Partners States shall avoid importation of pollutants from other countries into the region for disposal.

Water pollution control

Creation of public awareness in the importance of protecting water resources from pollution including thatresulting from point and non-point sources.

Practical and cost effective water quality and pollution control monitoring programs (including networks) willbe developed and implemented.

Factories, municipal authorities, large irrigation schemes and mining operations will be required to collectand keep accurate records of the quality of effluents and submit the same to relevant water managementinstitutions.

The "polluter pays” principle shall apply in conjunction with other legal and administrative measures.

Building Block 5: Security from water-related disasters

Protection from floods and droughts

Facilitate and coordinate the management of natural disasters associated with transboundary water resources.

Member States shall commit themselves to protect human life, livestock, property and the environmentagainst the effects of water related natural and human-induced disasters.

Promote the development and implementation of Early Warning System for floods and droughts for nationaland regional use.

Prediction, planning and management of natural disaster management

Prepare an implement effective regional and watercourse strategies to improving the region‟s capacity inpredicting water-related disasters associated with floods and droughts.

Develop disaster preparedness responses measures at regional level for dealing with floods and drought



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disasters.

Develop a framework that can enable early warning, prediction, planning and management of water relatednatural disasters and have contingency plans and resources available to minimize the impacts.

Flood and drought monitoring stations and early warnings systems will be established so as to detectprospective floods and drought occurrences and disseminate information to the public in advance. Floodand drought control infrastructure, including dam safety measures, will be promoted, as will measures for

impact mitigation against water resources pollution from accidental chemical pollution.Partner states State have an obligation to notify and share knowledge and information with affectedwatercourse States in the event of actual or pending water related disasters.

Provisions for dam safety management

Develop strategies for enhancing dam safety management.

Strengthen capacity for dam safety management through development of appropriate safety guidelinesand institutional capacities for enforcement of the guidelines.

Comprehensive and objective assessment of the economic, social, and environmental impacts wouldbe carried out and adequate mitigation measures put in place for implementation at regional andnational levels.

Building Block 6: Water resources information, management and exchange

Data collection and information management

Partner States will strengthen existing system of data collection, processing, storage and dissemination of various transboundary water resources data. Data quality Control will be an integral part of the datamanagement system.

Strengthen the operational capacity for data collection, management of information and assessment of water resources on the basis of simplified, practical needs of the basin.

Promote information sharing through internet, websites need to be promoted. Some specific regionalinformation and news can be posted on the website on a regular basis. As well, knowledge managementstrategy must be prepared for the benefit of the region.

Data and information exchange

Establish of an effective system of local and international exchange of information will be strengthened, witha view to increase knowledge and experience, efficiency, and collaboration.

Promote timely sharing of relevant available information and data regarding the hydrological, hydro-geological, water quality, meteorological and environmental condition of shared water resources.

Water resources assessment

Promote establishment and cooperation in establishment of efficient hydrological, hydrogeological andmeteorological data acquisition and dissemination systems related to transboudary water resources.

Strengthen the capacity of national and regional hydrological agencies capacities for data analysis,information management and dissemination.

Adopt compatible systems for transboundary water resources data and information acquisition andmanagement.

Building Block 7: Institutional framework for water resources management

Structure and systems of management at national level (including river/water basin structures)

Promote decentralised the management of water and the associated authority to the lowest appropriatelevel, while maintaining appropriate institutional arrangements for the management of shared watercourses.



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Promote appropriate institutional arrangements to enhance the stakeholder participation, gender in takingdecisions on planning and management of transboundary water resources at national and local.

Promote framework and structure for conflict resolution and ensure stakeholders participation. Developscientific tools for conflict resolution backed with appropriate training.

Proposed Monitoring and Evaluation system

Partner states will promote the establishment and implementation of a transparent and independent monitoring and evaluation systemfor policy implementation in order to assess achievement of its development goals, objectives, strategies, programmes andinstitutional performance for transboundary water resources.

Building Block 8: Stakeholder participation, awareness creation and capacity building

Mechanisms for stakeholder participation at national level and regional levels

Promotion of effective conflict resolution mechanisms at national and transboundary levels in whichstakeholders will have a role to its development and implementation.

Involvement and participation of stakeholders in planning, management and decision making at alllevels.

Existing capacities for participation in water resources management at national level

Capacity building needs of regional and national intuitions will be identified and prioritized with a viewto recommend appropriate intervention measures required to address these needs based on newapproaches to water resources management which emphasize the integration of sectors, participation,comprehensiveness, and subsidiarity.

Regional and national training institutions capacity will be strengthened to offer appropriate courses for new generation of well trained and skilled IWRM experts at national and regional level.

Gender Mainstreaming for water resources management Gender mainstreamed in water resources use and management through capacity building, institutionalstrengthening and affirmative action in the composition of various groups in institutions related to water

resource management.Ensuring that all units and all personnel within the system have the responsibility for ensuring involvement of both men and women in all aspects of programmes and policies on transboundary water resources.Incorporating gender concerns into the planning and decision making, and promotion of process.

Building Block 9: Research and Development

Demand-Driven Water Related Research and Technology Development

Adopt effective and efficient demand-driven water sector research and technology development in theRegion and promote the use of research outcomesStrengthen existing national and regional individual researchers and research institutions, and improvedcommunication and collaboration between research institutions.

Promote publication, dissemination and implementation of research findingsPromote complementary production of goods among Partner States.

Building Block 10: Financing integrated water resources management

Sources of funds for water resources management

Partner states will ensure the collection of adequate fees/charges from water abstraction and use of transboundary water resources for economic purposes, as will the discharge of effluents. The level of abstraction and discharge charges and the criteria to be used in setting such charges will be subject to



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regular review and approval based on criteria and guidelines established by Partner States.

The funds so generated will be used by the Partner States for water resources management in their respective countries. Special cconsideration will be given to requirements of the poor and the vulnerable.

Financial Sustainability for water resources management

Partner States will determine the criteria and guidelines for transboundary water resources management

based on:

(i) Evaluation of economic value of water resources –rivers, lakes, swamps/major wetlands, andsensitive catchment areas where competition for scarce water resources is apparent; whichwould support economic water allocation principle.

(ii) Determination of financing needs for water resources management and development for allwater using and water impacting sectors at all levels-national (and trans-boundary), catchment,sub-catchment and user levels.

Financing needs for water resources development (WRD) may include investments ininfrastructure (for flood control, hydropower generation, irrigation, urban and rural domesticwater supply, industrial and livestock water supply, sanitation and sewerage, industrialwastewater treatment, etc) and associated institutions. Financing needs for water resourcesmanagement (WRM) may include institutions, systems and infrastructure for allocating water,controlling pollution and managing water quality, and protecting water resources at the basin,national and trans-boundary levels.

(iii) Financing sources



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1.0 INTRODUCTION

1.1 Background

Lake Victoria and other water resources in the basin have experienced severe threats that are impacting negativelyon the socio-economic and intrinsic values, contributing to annual losses amounting to millions of dollars. This hasresulted in serious impacts on water resources dependent economic activities such as: declined electricity productionat Jinja by 30% in December 2005; rendering the fish landing structures constructed to ensure good quality of fishuseless; and severely affecting the intakes of the water treatment plants in Kisumu, Entebbe, Mwanza and other riparian towns resulting into a decrease in the amount of water supply.

Given the various types of potentially competing uses the Lake Victoria and other water resources in the basin aresupporting, their sustainable management poses a challenging task. Although these resources require appropriatepolicy interventions, such as the ones proposed for regulating releases from the lake, their management alsorequires harmonised laws and regulations.

The governments of the five East African Community partner states; Burundi, Kenya, Rwanda, Uganda andTanzania are making serious efforts towards addressing water resources related challenges in their respectivecountries but also to utilize the transboundary water resources for social and economic benefits of the region Theseefforts have included, firstly, developing and strengthening of their national policies, institutional frameworks, andlaws and regulations which are essential to meet the existing and emerging water resources challenges, and,secondly, regional cooperation to jointly address transboundary threats and challenges and to seek opportunities of the shared water resources. Burundi is in the process of developing its national water policy, Rwanda‟s policy of 2011 is in the final stage of approval. Kenya developed Sessional Paper No. 1 of 1999 on National Water Policy onWater Resources Management and Development. Uganda had its National Water Policy 1n 1997; and Tanzaniareplace its 1991 Water Policy with National Water Policy 2002. All the polices promote comprehensive water resources management and development framework.

In East Africa and Lake Victoria Basin in particular, water plays a central role in social and economic developmentprocess of the riparian states. It touches all sectors of the economy including domestic, agriculture, livestock,fisheries, wildlife, industry, energy, and recreation. It also plays pivotal role in poverty alleviation. Apart fromsustaining a rich diversity of natural ecosystems, the region‟s water resources are critical for meeting the basic needsrelated to water supplies for domestic and industrial requirements, and for sanitation and waste management for itspeople. The East African states after signing the EAC Treaty in 1999 declared the Lake Victoria Basin as anEconomic Growth Zone. They have a commitment to develop the Lake Basin in a coordinated and sustainablemanner. Realization of the great potential for sustainable social, economic and environmental development a sharedVision and a common framework for the development of policies and strategies emerged.

The Project to review and harmonize regional policies, legal and institutional frameworks governing utilization of water resources falls under the Lake Victoria Basin Commission Secretariat comprising of the five EAC Partner

States of Burundi, Kenya, Rwanda, Tanzania and Uganda. It is implemented through the Lake Victoria EnvironmentManagement Project Phase II. The Regional Policy Steering Committee (RPSC) oversees overall implementationand provides policy guidance to the Project.

Development of harmonized policy, legal and institutional framework will certainly promote regional cooperation andintegration with riparian states.



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1.2 Objectives of the assignment

The overall objective of the study is to harmonise policies, laws and regulations governing utilization of water resources in the Lake Victoria Basin among the EAC Partner States.

Specific Objectives

The specific objectives of the consultancy are to:

(i) Analyse and Review the existing policies, laws and regulations governing the management of transboundary water resources with a view to identifying policies, laws and regulations that requireharmonisation;

(ii) Review the existing capacity of national and local institutions in the management of transboundarywater resources;

(iii) Review existing participation of communities and other stakeholders in the management of transboundary water resources;

(iv) Prepare proposed harmonised policies, laws and regulations based on (i) above;

(v)

Review the regional and national institutional arrangements in the implementation of the proposedharmonised policies, laws and regulations.(vi) Develop an action plan for implementing the proposed policies, laws and regulations including but

not limited to EAC approval process, timeframe for transformation and the financial implications.

The harmonized transboundary water policy, legal and institutional framework would support the EAC states goal of regional integration and poverty eradication, and provide a long term perspective for achieving the objectives of socio-economic development, food security, energy security, industrial development, sustainable environment andsecurity against natural disasters such as floods and droughts. The underlying development framework is integratedwater resources management (IWRM) using the tools of planning, water resources information management, sector institutions, capacity building and stakeholder participation, environmental management and conflict resolution. Toachieve these goals of a regional harmonized policy, legislation and institutional framework, it will be critical to review

principles governing national and or transboundary policies/legislation addressing specific building blocks which mayinclude the following:

Building Block 1: Cooperation in water resources management and developmentBuilding Block 1: Sustainable water resources development and managementBuilding Block 1: Water for environment and ecosystem sustainabilityBuilding Block 1: Water Quality Management and Pollution ControlBuilding Block 1: Security from water-related disastersBuilding Block 1: Water resources information, management and exchangeBuilding Block 1: Institutional framework for water resources managementBuilding Block 1: Stakeholder participation, awareness creation and capacity buildingBuilding Block 1: Financing integrated water resources management

1.3 The Approach and Methodology

The review focused on the policies, laws, regulations and institutional arrangements for transboundary water resources management and development in the riparian countries of Lake Victoria Basin on the basis of sound anddetailed technical-analytical analysis. The differences and similarities in policies, laws and regulations governingtransboundary water resources in the EAC Partner States were identified and harmonized within the framework of



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the 9 building blocks shown above. Furthermore, the consultant has examined stakeholder participation in themanagement of transboundary water resources at all levels.

In carrying out the tasks, a consultative and participatory process was been adopted. Consultative meetings shall beheld with the whole range of officials from the EAC member state including senior officials of with the LVBC.

1.4 Outline of the Report

Chapter 1 is the introductory chapter which gives the background to assignment and outlines the general approachand methodology adopted.

Chapter 2 is an overview presents an overview which details main Features of the Lake Victoria Basin and outlines keyTransboundary water resources Issues.

Chapter 3 provides an analysis an review of existing national policies, laws and regulations

Chapter 4 review of existing reginal and international treaties, protocols, conventions and agreements.

Chapter 5 gives a review of the existing capacity of national and local institutions for the management of transboundarywater resources.

Chapter 6 review of the regional and national institutional arrangements for the implementation of the proposed harmonisedpolicies, laws and regulations

Chapter 7 discusses participation of communities and other stakeholders in the management of transboundary water resources.

Chapter 8 presents proposed approach to lead to the harmonised policies, laws and regulations for transboundarywater resource managements. Proposed policy statements for each of the Building Blocks are also presented for consideration.



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2.0 OVERVIEW OF THE LAKE VICTORIA BASIN

2.1 Introduction

Lake Victoria, the largest of all African Lakes, is also the second widest freshwater Lake in the world. It is a major shared resource of the five EAC Partner States. Its extensive surface area of 68,000 km2 is shared by threecountries, namely, Kenya (6%), Uganda (43%) and Tanzania (51%). The drainage basin is relatively small, about193,000 km2 extending into Republics of Rwanda and Burundi. It is estimated that about 35 Million people live withinthe Basin.

Fig 1: Map showing the Lake Victoria and its catchment areas (Source WEMA, 2009)

2.2 Main Features of the Lake Victoria Basin

The Lake is a major trans-boundary natural resource that is heavily utilized by its riparian countries for fisheries,transportation, tourism, water supply and waste disposal. In terms of its volume, Lake Victoria contains about 2,750

cubic kilometers of water. The lake receives in approximation 82% of the water from precipitation directly falling onthe lake surface with stream-flow and basin run off contributing just 18%. It has a maximum depth of 84 metres andan average depth of 40 metres. Lake Victoria supports Africa's largest inland fishery. Despite that there isconsiderable fluctuation in annual rainfall in the catchment‟s area; the Lake is a major source of water for domestic,industrial, agricultural and recreational activities as well as securing conservation of the biodiversity and theecosystem functioning of large wetland and forest areas. These ongoing activities have exerted enormous pressureto the water as far as experiencing short-term few-meter fluctuations in the lake level in years of high precipitation or drought. The ecosystem of the basin is fragile caused by a wide range of ongoing socio-economic activities thatconstraint its management and development. These ecosystems have come under increasing stress that gives rise

http://en.wikipedia.org/wiki/Fishery

http://en.wikipedia.org/wiki/Fishery



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to considerable concerns among them; increased pressure on resources, losses of habitats and biodiversity,increased water pollution and general degradation of the environment. The Basin features unique ecosystemsustaining rich biological biodiversity of flora and fauna. The sub-catchments within the basin contain variousinteracting micro-ecosystems that play major role in maintaining and conserving biodiversity.

The basin‟s wetlands are suffering from overuse and destruction caused by increasing population, socio-economic

activities and degradation. Wood harvesting, shelter construction, removal of material for handicrafts, waste dumping,increased run off pollution, and excavation of sand and clay said to aggravate the situation. Some recent remotesensing assessments of wetlands show change of conservation to intensive agriculture and reclamation of land for new settlements and road constructions. These activities have hydrological consequences, leading to increased floodhazards and loss of vegetation cover especially in the floodplains.

The population in the basin engages in various activities ranging from subsistence livelihoods to industrial activitiesdischarging waste into the Lake. Coupled with inputs of nitrogen and phosphorus from atmospheric deposition andnutrient inputs from land, tributary watersheds give rise to excessive nutrients in the water detrimental to aquatic life.The Lake Basin is endowed with natural resources that the communities exploit to sustain their livelihoods. Thesenatural resources have shaped the production and income generating activities of the communities.

Apart from supporting wellbeing, there are a number of Threats and challenges to the Lake Victoria Basin whichinclude degradation of water bodies due to over-abstraction, encroachment on the catchment‟s areas, destruction of filtering mechanisms, discharge of agro-chemicals, waste and refuse to water bodies and increasing population withintensified socio-economic development that exert pressure on these resources, as well as decrease in fishbiodiversity and altered food webs. More recently the water hyacinth is believed to be a major reason for thealteration of many communities of aquatic and terrestrial species associated with the lake, the changes that are alsostrongly affecting the harvesting of aquatic resources. This is further aggravated by changes in water quality, nutrientcycling and food web structure consequently leading to a decrease in the fish biodiversity.



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3.0 ANALYSIS AND REVIEW OF THE EXISTING NATIONAL POLICIES, LAWS AND REGULATIONS

3.1 Kenya National Policy and Legal Framework

3.1.1 Kenya Water Related Policies

The overall Government policy for the water sector Kenya is geared towards devolving policy implementation torelevant stakeholders, especially local communities and the private sector. This approach is detailed in thegovernment Strategy for Performance Improvement in the Public Service and the policy on reforms and privatisationof public enterprises. Under this new policy dispensation, the role of the Ministry will be refocused towards policyformulation, co-ordination, support in resource mobilization and sector regulation. A summary of the existing policyframework for the water sector is given below.

The Constitution of the Republic of Kenya, 1998

The Constitution is the supreme law of the land that lays the fundamental principles for the governance of the

country. However, the current constitutional does not have explicit provisions dealing directly with environmental andnatural resources management and conservation. All the provisions dealing with the conservation of naturalresources are to be found in the laws enacted under the Constitution.

The need to include provisions in the country‟s supreme law dealing with natural resources conservation wasrecognized by the proposed new Constitution, 2005, which included extensive provisions dealing with naturalresources management. This proposed Constitution was not approved at the referendum held in November 2005 andis pending review.

National Water Policy, 1999

The Kenya Government developed the Sessional Paper No. 1 of 1999 on National Water Policy on Water Resources

Management and Development, which sets out the policy direction in the management and development of the water resources in the country. The policy paper adopted the following four specific principles to guide the activities in thewater sector in addressing the challenges facing the sector:

(i) Preserve, conserve and protect available water resources and allocate it in a sustainable, rational andeconomical way.

(ii) Supply water of good quality and in sufficient quantities to meet the various water needs, includingpoverty alleviation, while ensuring safe disposal of wastewater and environmental protection

(iii) Establish an efficient and effective institutional framework to achieve a(iv) Systematic development and management of the water sector.(v) Develop a sound and sustainable financing system for water supply and sanitation development.

Based on the above principles, the sessional paper sets out the framework that is intended to promote

comprehensive water resources management and development with the private sector and communityparticipation as the prime movers in the process to guarantee sustainability.

(vi) Despite its comprehensiveness, the Water Policy does not have specific provisions for transboundarywater resources management and therefore does

(vii) Not give any policy direction on the management of shared water resources. In(viii) Order to address this policy gap, government, in 2002, embarked on the process of preparing a

specific policy on the utilization of shared water resources (specifically, Lake Victoria water resources). A draft policy has been prepared and is still going through the review process by the relevant



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government organs. The draft Policy is consistent with the Protocol for the Sustainable Development of the Lake Victoria Basin and the yet to be concluded Nile River Basin Cooperative Framework.

National Environment Management Policy

Kenya‟s efforts to develop a policy paper on environmental and natural resources management have not yet reached

fruition. In 1999, the then Kenyan Ministry in charge of environmental management developed a Sessional Paper onEnvironment and Sustainable Development. The Sessional Paper was not presented to Cabinet for approval, neither was it presented to Parliament for debate and approval. Therefore, it was not published, and remains unofficial to hisday. Despite the lack of an explicit environment management policy, government still emphasises sustainable andenvironmentally friendly development and as a deliberate and conscious policy, promotes sound environmentalmanagement for sustainable development. This is achieved through the principle of prudent use, which requires thatthe present day usage of environmental resources should not “compromise the needs of future generations”.

Proper environmental management has been a top priority for the Government since independence, the Nationaldevelopment plan of 1979 states „Environmental considerations must pervade development decisions at every level‟.In an effort to conserve the environment the Government established the National Environmental Management

Authority (NEMA) through the Environmental Management and Co-ordination Act (EMCA) of 1999, to exercise

general supervision and co-ordination over all matters relating to the environment. EMCA entitles each and everyoneto a clean environment but also requires us to safeguard environmental quality.

The sessional paper envisages the use of the “polluter pays principle”, where one is expected to make good anydamage made to the environment.

The paper emphasises the fact that prospects for Kenya‟s long-term growth are dependent on effective managementof its resources and the conservation of the environment. The paper, therefore, defines the following strategicobjectives for sustainable environmental management:

(i) To create an enabling environment through policy, legal and regulatory reforms for environmental andnatural resources management.

(ii) To protect, conserve, and sustainably manage the environment and natural resources.(iii) To generate knowledge and technologies towards sustainable management of the environment and

natural resources.(iv) To strengthen capacity in the environment and natural resources management.(v) To mainstream environmental concerns into overall planning and implementation of programmes and

projects.

National Wetlands Policy

Kenya has not yet developed a Wetlands Management Policy. The process for developing a wetlands managementpolicy has been initiated, though it is still in the early stages. The Kenya Wildlife Service presently manages wetlandsprotected under the RAMSAR Convention. NEMA and the WRMA both have jurisdiction over specific wetlands, each

arising from its respective statute. The WRMA is currently in the process of gazetting rules dealing with themanagement of wetlands.

Kenya Forest Development Policy

The policy framework for forest development and management in Kenya is provided for under the Kenya ForestDevelopment Policy Sessional Paper No.9 of May 2005 whose objectives include the following:

Contribute to poverty reduction, employment creation and improvement of livelihoods through sustainable use,



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conservation and management of forests and trees.

(i) Contribute to sustainable land use through soil, water and biodiversity conservation and tree plantingthrough the sustainable management of forests and trees.

(ii) Promote the participation of the private sector, communities and other stakeholders in forestmanagement to conserve water catchment areas, create employment, reduce poverty and ensure

sustainability of forest sector.(iii) Promote farm forestry to produce timber, wood fuel and other forest products.(iv) Promote dry land forestry to produce wood fuel and to supply wood and non-wood products.(v) Promote forest extension to enable farmers and other stakeholders to benefit from forest management

approaches and technologies.(vi) Promote forest research, training and education to ensure a vibrant forest sector.(vii) The above policy objectives affect conservation of water catchment in one way or another.

National Irrigation Policy

Preparation of the National Irrigation Policy and other related legislations is an exercise that is ongoing currently inthe Ministry of Water and Irrigation. The policy direction is for the government to move from implementation of the

policy and let communities, the private sector and other sector stakeholders to play a bigger role. This policy aims atachieving sustainable development and management of the irrigation and drainage sector by addressing thefollowing objectives:

(i) To fully develop the irrigation and drainage potential in the country for economic development.(ii) To effectively regulate, coordinate and manage all activities within the irrigation sub-sector.(iii) To create an appropriate financing system that will attract investment into the sector.(iv) To create an enabling environment for effective participation of the farmers‟ organizations and other

stakeholders in the provision of quality and cost-effective support services, and(v) To enhance a multi-sectoral approach to irrigation research and development involving government,

private, civil society and communities.

It is anticipated that, with the development of this policy, recognition that communities and the private sector offer invaluable potential to attainment of accelerated development within this sub-sector will be achieved.

In the absence of an irrigation policy, the Ministry of Agriculture has developed guidelines for the development,operation and management of smallholder farmer-managed schemes. The Irrigation Development Board hasdeveloped guidelines and manuals to direct the development of smallholder irrigation andthe process of community participation for sustainable development. Irrigation, drainage and water use for agricultureis hampered by the lack of a national irrigation policy and plan, which leads to haphazard irrigation development withlimited coordination among the various institutions. This is further exacerbated by the evidently inequitable spatialand temporal water distribution within the country.

National Agricultural Extension Policy, 2001

The National Agricultural Extension Policy (NAEP) of December 2001 proposed to improve the management of extension services both in the public and private sector by promoting decentralization of decision making, inter-sectoral planning, monitoring and evaluation and increased community involvement in extension programmes andprojects.

National Land Policy

Government is in the process of formulating strategies and policies to provide security of tenure and access to land



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for the poor. Insecure land tenure systems have led to low investments in land improvement and productivity.Therefore, the draft Land policy has recommended that the Government should provide secure tenure to ensureaccess to land by rural poor for production purposes.

National Gender Policy

Kenya does not have a national gender policy, and gender issues are addressed using a variety of legal and policyprovisions. The existing laws provide for equal rights and privileges to both men and women. However, their interpretation through common laws and social conventions often leads to difficulties and their being compromised.

3.1.1 Review of water related laws and regulations

The Constitution of the Republic of Kenya, 1998

The Constitution is the supreme law of the land that lays the fundamental principles for the governance of thecountry. However, the current constitution does not have explicit provisions dealing directly with environmental andnatural resources management and conservation. All the provisions dealing with the conservation of naturalresources are to be found in the laws enacted under the Constitution.

The Water Act, 2002

Following the adoption of the National Water Policy in 1999, the Government embarked on a legal and institutionalprocess, which culminated in the enactment in July 2002 of the Water Act, 2002. This Act replaced the Water Act,Chapter 372. The Act was enacted with the following objectives.

(i) To separate the institutional framework for managing water resources from that dealing the provision of water supply in order to accord due attention to the management of water resources;

(ii) To create autonomous regulatory institutions to regulate the management of water resources andanother similarly autonomous institution to regulate the provision of water services;

(iii) To decentralize water resources management to catchment areas;

(iv) To provide for local and user groups involvement in water resources management and for conflictresolution; and

(v) To introduce fees for the abstraction and use of water resources.

The Water Act 2002 came into effect in 2003, when the establishment of the institutions provided for in the Actcommenced. The Act provides for regulations to supplement its provisions. Most of the regulations have not yet beengazetted, although work of draft regulations is at an advanced stage. It istherefore likely that the legal framework will evolve further with the gazettement of the regulations.

Section 3 of the Water Act vests “every water resource” in the State. Section 2 defines “Water resource” to mean“any lake, pond, swamp, marsh, stream, water course, estuary, aquifer, artesian basin or other body of flowing or standing water, whether above or below ground .” Section 4 makes it the duty of the Minister to have and exercise

control over every water resource, specifically to the promote the investigation, conservation and proper use of water resources throughout Kenya Water Resources Management Section 7 of the Act creates the Water ResourcesManagement Authority (WRMA). WRMA is responsible for the regulation of the use and management of water resources. A key aspect of this mandate is the allocation of water resources through a permit system. The frameworkfor the exercise of the water resources allocation function comprises the development of national and regional water resource management strategies, which are intended to outline the principles, objectives and procedures for themanagement of water resources.



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The Act provides a role for user groups, organized as water resources users associations, in the management of water resources. Section 15(5) states that these associations will act as for a conflict resolution and cooperativemanagement of water resources. Management of protected areas is provided for in section 17. This stipulates thatwhere the WRMA is satisfied that special measures are necessary for the protection of a catchment area it may, withthe approval of the Minister; declare such an area to be a protected area. The WRMA may then impose requirements

and regulate or prohibit conduct and activities in the area.

Water Resources Strategic Planning

The Act provides for the formulation of water resources management strategies at national level and at catchmentarea level. Under section 11 the Minister shall formulate a national water resources management strategy, and shallperiodically review it. Under section 15 the WRMA shall formulate for each catchment area, a catchment areamanagement strategy, which shall be in line with the national water resources management strategy. Whereas asdraft national water resources management strategy has been formulated, no catchment area management strategyhas been formulated as yet, although it is understood that work on this has started within the WRMA.

The Act defines the reserve to mean the quantity and quality of water required

(i) To satisfy basic human needs for all people who are or who may be supplied from the water resource; and(ii) To protect aquatic ecosystems in order to secure ecologically sustainable development and use of the water

resource. Classification of water resources is dealt with in section 12. This states that the Minister shallprescribe a system for classifying water resources for the purpose of determining resource quality objectivesfor each class of water resource. Under the prescribed classification system, water resources may beclassified according to type, location, and geographical or other factors.

Regulation of Water Use

Another important regulatory instrument is the water permit, which is required for the use of water. Section 6 statesthat:

“No conveyance, lease or other instrument shall be effectual to convey, assure, demise, transfer, or vest in anyperson any property or right or any interest or privilege in respect of any water resource, and no such property, right,interest or privilege shall be acquired otherwise than under this Act.”

In order to use water, a permit is required. Indeed the Act states that it is an offence to use water from a water resource without a permit. There are however three exceptions to the permit requirement. These relate to:

(i) Minor uses of water resources for domestic purposes;(ii) Uses of underground water in areas not considered to face groundwater stress and therefore not

declared to be groundwater conservation areas;(iii) Uses of water drawn from artificial dams or channels, which – being artificial rather than natural - are

not considered to be water resources of the country.

The application for the permit is made to the WRMA. Section 32 stipulates the factors to be taken into account inconsidering an application for a permit. Applications for permits are required to be subjected to public consultation.

Accordingly the application shall be advertised in the print and electronic media and an opportunity given to thosewho wish to make comments or lodge objections to do so. Permits are given for a specified period of time.

Additionally, the Authority is given power to impose a charge for the use of water. The charge may comprise both anelement of the cost of processing the permit application as well as a premium for the economic value of the water



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potentially adverse impacts on the environment of proposed or ongoing projects. Its inclusion as a legal requirementis an important step towards realizing the objectives of sound environmental management. That having been said, itis worth pointing out that as contained in EMCA, the EIA and audit requirement suffers from a number of limitations inits capacity to ensure that trans-boundary water resources are managed in an integrated and environmentallysustainable manner.

The Agriculture Act

The Agriculture Act3, has significant provisions on the management of water resources generally and catchments inparticular. The aim of the Agriculture Act is to promote and maintain a stable agriculture sector, to provide for theconservation of the soil and its fertility and to stimulate the development of agricultural land in accordance with theaccepted practices of good land management and good husbandry. Part IV of the Agriculture Act deals with thepreservation of the soil and i ts fertility and gives the Minister powers to take action designed to preserve the fertility of the soil. Section 48 provides that whenever the Minister considers it necessary or expedient to do so for the purposesof the conservation of the soil of, or the prevention of the adverse effects of soil erosion on, any land, he may, withthe concurrence of the Central Agricultural Board, make rules for prohibiting, regulating or controlling:

(i) The breaking or clearing of land for the purposes of cultivation;

(ii) The grazing or watering of livestock(iii) The firing, clearing or destruction of vegetation including stubble.

The Act provides further empowers the Minister where necessary to make rules for: The protection of land againststorms, winds, rolling stones, floods or landslips. The preservation of soil on ridges, or slopes or in valleys.

Preventing the formation of gullies 3 Chapter 318 Laws of Kenya

(i) The protection of the land against erosion or the deposit thereon of sand, stones or gravel(ii) The maintenance of water in a body of water.(iii) The protection of roads, bridges, railways or other lines of communication(iv) The preservation of the soil and its fertility.

The minister is also empowered to require, regulate or control:

(i) The afforestation or re-afforestation of land(ii) The protection of slopes, and catchment areas(iii) The drainage of land, including the construction ,maintenance or repair of artificial or natural drains,

gullies, contour banks, terraces and diversion ditches.

The minister may require the uprooting or destruction, without payment of any compensation, of any vegetation,which has been planted in contravention of a land preservation order. The minister may also make rules requiring thesupervision of unoccupied land. He/she may also make rules prohibiting, restricting or controlling the use of land for any agricultural purpose including the de-pasturing of stock.

Part V of the Act deals with the development of land. Section 64 stipulates that the Minister may make orders(referred to as “land development orders”) requiring the execution in respect of any agricultural land by owners or occupiers of development programmes. “Development programmes” mean the adoption of such a system of management or farming practice or other system as the Central Agricultural Board may consider necessary for theproper development of the land for agricultural purposes.

Part XII provides that the Minister may make rules for the preservation, utilization and development of agriculturalland. Such rules may-:



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(i) Require owners to manage land in accordance with rules of good estate management(ii) Require occupiers to farm land in accordance with the rule of good husbandry(iii) Regulate, control or prohibit the cultivation of land or the keeping of stock(iv) Regulate the kinds of crops which may be grown on land(v) Empower local authorities to make rules.

Part XIII deals with the Minister ‟s powers to dispossess owners or occupiers of agricultural land in cases of persistentcontravention of rules. Section 185 gives the Minster power, where the occupier is not the owner of the land, toterminate his interest in the land and require that the owner farm it himself or let it to another tenant. Where theoccupier is the owner of the land the Minister shall have the power to direct that he give up his occupation of the landand let it to a tenant approved by the Central Agricultural Board; or to agree with the owner or the purchaser of theland; or to acquire the land compulsorily.

Section 187 gives the Minister powers with respect to inadequately managed land to make a “management order”directing that the holding be occupied and managed by the Minister to the exclusion of the owner. The Minister mayalso lease, or sell the land.

The Agriculture (Basic Land Usage) Rules have been made in line with the provisions of Part XII of the Act. Rule 3seeks to protect land with a slope exceeding 35%. It provides that any person who cultivates, cuts down or destroysany vegetation or de-pastures any livestock on any land of which the slope exceeds 35% shall be guilty of anoffence. However, an authorized officer may authorize an owner to cultivate, de-pasture, cut down or destroyvegetation on the land subject to conditions as he may decide. Rule 4 provides that an authorized officer may prohibitcultivation or cutting down or destruction of vegetation on any land of which the slope exceeds 20%. Rule 5 providesthat any person who cultivates any land of which the slope exceeds 12% but does not exceed 35% when the soil isnot protected against erosion by conservation works shall be guilty of an offence.Rule 6 provides that any person who, except with the written permission of an authorized officer, cultivates or destroys the soil, or cuts down any vegetation or de-pastures any livestock on any land lying within 2 metres of awatercourse, or in the case of a watercourse more than 2 metres wide, within a distance equal to the width of thatwatercourse to a maximum of 30 metres shall be guilty of an offence.

The Fisheries Act

The Fisheries Act, Chapter 378 governs the management and exploitation of fisheries resources in Kenya. The Actvests ownership of fisher ies resources in the central government. The overall objective of the Act is “providing for thedevelopment, management, exploitation, utilization and conservation of fisheries.” To manage fisheries it provides for closed seasons; prohibited fishing areas; limitations on the methods of gear; limitations on the amount, size, age andother characteristics and species of fish that may be caught; management of fish landing areas; the control of aquaticplants in fishery waters and registration and licensing of fishing vessels.

Accordingly, rights to harvest fisheries resources are defined in the law and granted to individual fishermen through alicensing system on an annual basis. Fishing without a licence was criminalized as an activity, with the result that

many local community members find themselves on the wrong side of the law, for carrying out a normal subsistenceactivity. For management and administration, the statutes establish a central fisheries management body, theFisheries Department, which works through district offices. More recently, there has been a re-examination of alternative management approaches, particularly approaches based on “co-management incorporating theparticipation of resources users, in the management system.

The Physical Planning Act

This Act replaced statutes that earlier dealt with land use planning. It provides for the preparation and implementation



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of physical development plans, which are critical in setting out the nature and extent of use, which may be carried outin particular areas.

Section 16 provides that a Regional Physical Development Plan may be prepared by the Director of PhysicalPlanning with reference to any Government land, private land or trust land within the area of authority of a countycouncil. Under section 23 the Director may declare an area with unique development potential or problems as a

special planning area. The Director may also suspend for a period of not more than two years any development hedeems necessary in a special planning area for a period of not more than two years. The Director may prepare withreference to any Government land, trust land or private land a local physical development plan. Section 29 of the Actplaces development control in the hands of local authorities who consider applications for development permission.Whereas the Physical Planning Act could provide a basis for the management of catchments, on the whole, it has notbeen the practice in Kenya to carry out land use planning with respect to rural areas, and with respect to agriculturalactivities, which have the heaviest impact on catchments and on water resources. Nevertheless the potential exists touse physical planning as a mechanism for water resources management.

Lake Basin Development Authority Act4

The Act provides for the establishment of Regional Development Authorities (RDAs) and empowers them to

undertake planning for the proper use, conservation and development of natural resources at catchment level and tocoordinate development in their respective catchment areas. The main Chapter 442 of the Laws of Kenya functionsof the RDAs are primarily to plan for and coordinate the development of the respective areas in the country and toinitiate development activities identified through such planning. These functions are standard for all the regionaldevelopment authorities, and most are to be found in section 8 of the LBDA Act.

Wildlife (Conservation and Management) Act5, Cap 376

The Wildlife (Conservation and Management) Act deals with the management of wildlife. It provides for theestablishment of game parks and reserves and prohibits activities that might hamper the proper management of wildanimals. These include activities such as deforestation, cultivation of land within a national park and so on. Theseprovisions have relevance to water resources management to the extent that protected wildlife areas are often

significant water catchments. The Act was amended in 1989 to provide for the establishment of Kenya WildlifeService (KWS) to be the national body responsible for the management of wild life in Kenya. At the local level,management of wildlife is carried out by county councils, which are responsible for game reserves. Although theWildlife (Conservation and Management) Act is not, strictly speaking, a water resources management statute, KWShas the mandate to deal with wetlands, particularly wetlands under the Ramsar Convention. Presently, these areonly Lakes Nakuru, Naivasha, Baringo and Bogoria. There is a plan to include also the Tana Delta as a Ramsar site.However, there are also a few instances, like those of Mt. Kenya National Park and Mt. Elgon where the KenyaWildlife Service has been given responsibility to manage park areas, which cover gazetted forests. As these are of great significance as catchment areas, the Wildlife Act can therefore have implications for the management of water resources.

The Forest Act6

The Forest Act (2005) provides for the establishment of forest conservancy areas and committees to regulate themanagement of forests in their respective areas. This provision is a major departure from the previous administrativearrangements for the management of forests in Kenya, under which forests were managed on the basis of administrative provinces and districts. In this respect the new Forests Act is more closely aligned to the Water Act2002, in so far as it provides for management of the natural resources on an ecological basis.5 Cap 376 Laws of Kenya, 6 Chapter 385 Laws of Kenya Forest management is an important aspect of integrated water resourcesmanagement due to the fact that many gazetted forest areas coincide with water catchments. The Middle reaches of the Mt. Elgon, which form part of the study area are forested and have benefited from protection under forest laws.



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Section 23 of the Act provides for the creation of forests. It states that the Minister may, from time to time, by notice inthe Gazette declare:

(i) Any un alienated Government land to be a forest area and any land purchased or otherwise acquiredby the Government

(ii) The Forest Service, created under the Act may recommend variation of the boundaries of a forest or

declaration that a forest ceases to be forest if it is satisfied, inter alia, that the variation or cessationdoes not adversely affect the value of the forest as a water catchment area.

Under section 24 the Minister may declare any land under the jurisdiction of a local authority to be a local authorityforest where:

(i) The land is an important catchment area, a source of water springs, or is a fragile environment;(ii) The land is rich in biodiversity or contains rare, threatened or endangered species;(iii) The forest is of cultural or scientific significance;(iv) The forest supports an important industry or is a major source of livelihood for the local community.

The Act provides for the preparation of forest management plans in accordance with which forests shall be managed.

The plans shall be prepared by the Forest Service and the local authority, each with respect to the forest over whichit has jurisdiction.

Section 52 prohibits various activities in a forest area unless permitted by the Forest Service in accordance with amanagement agreement entered into with the Forest Service. These include:

(i) Felling, cutting, burning, injuring or removing forest produce; Setting fire to any grass or undergrowth;(ii) De-pasturing cattle;(iii) Clearing, cultivating or breaking up any land for cultivation, capturing or killing any animal.

3.1.4 Institutional Framework for management of water resources

In Kenya before the enactment of Water Act 2002, MWI, Ministry of Local Government, NGOs, CBOs and the privatesector actors undertook water resources development and management. However, the management of water affairswere unsuccessful due to institutional weaknesses including over-centralized decision-making processes, aninappropriate and run-down monitoring network, inadequate water resources database and documentation,discontinuous assessment programs, uncoordinated source development, inoperative water rights, absence of special courts to arbitrate water use conflicts, and a generally weak institutional setup; all these affected the sector‟sperformance. Inadequate funds and shortage of essential facilities was responsible for dilapidated infrastructure.From 1992 the water sector embarked on reforms designed to improve water and sewerage services and water resources management. Based on the new Water Act 2002 new institutions for water resources management andwater services were established. The figure shows the new institutional set-up under Water Act 2002 modified tobring on board the new Ministry‟s mandate. Water resources management has been devolved to the lower levels toensure transparency, effectiveness and efficiency. The institutional changes are aimed at building strong and well-

focused institutions capable of managing water resources and delivery of water services effectively.



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Figure 2. New institutional setup of the Ministry of Water and Irrigation after the Water Sector Reforms in Kenya

Poor governance has far-reaching implications in terms of human rights violations, corruption, absence of the rule of law and lack of transparency and accountability. Corruption undermines not only economic development but also thedemocratic quality of political systems; it increases social injustice. Within the water sector, corruption is prevalent.This problem poses a significant threat to sustainable human development and equality. Water is a natural resourcethat has a key role in development and sustainable livelihoods. As such, the equitable distribution of basic water resources and services is crucial. The cost of corruption in the water sector not only severely harms a country‟s

prospects for providing water and sanitation to all, but it also disproportionately affects the poor. This leads toinequitable management and use of basic water services. Yet corruption is one of the least addressed challenges inthe water sector. And poor people are as yet not able to hold service providers and governments to account.

The MWI remains in charge of development of legislation, policy formulation, sector coordination and guidance, and monitoring and evaluation. The MWI has overall supervisory powers over the implementation of the IWRM and WE Plan.

The WRMA, a corporate body that functions under the direction of a governing board, has responsibility for water resources management. It will develop principles, guidelines, and procedures for the allocation of water resources;assess and reassess the potential of water resources; receive and determine applications for permits for water use;monitor and enforce conditions attached to the permits for water use; regulate and protect the quality of water

Consumers, Users

L o c a l L e v e l

C o n s u m p t i o n

U s e

N a t i o n a l L e v e l

R e g i o n a l

L e v e l

P o l i c y F o

r m u l a t i o n

R e g u l a t i o n

S e r v i c e P r o v i s i o n

Water Resource User

Associations WRUAs

Water Service

providers WSPs

Water & San. ServicesWater Resources Management

Catchment Area

Advisory

Committees CAACs

WRMA Regional

Offices

WRMA WASREB

Water Services

Trust Fund WSTF

Water Appeal

Board

MWI

Irrigation Water User

Associations IWUAs

NIDDA

NIDDS (NIB)

IDRETS

I&D

Stakeholder

Committees

Irrigation & Drainage

Water Service

Boards

WSBs

Nat. Water Conservation

and Pipeline Corporation

NWCPC

Kenya Water Institute

KEWI



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resources from adverse impacts; manage and protect catchment areas; determine charges and fees to be imposed for the use of water from any water source; gather and maintain information on water resources from time to time inorder to publish forecasts, projections, and information on water resources; and work with other bodies for the better regulation and management of water resources. The Authority shall be responsible for coordination and implementation of the IWRM Plan.

A lot of progress has been made in rolling out the CMS. These CMS are pivotal to the implementation of the IWRM plan in the context of the Kenya‟s hydrological boundaries set up under the current water resources management regime. The WRMA established CAACs offices in the regions, whose membership consists of government officials,water users and communities. The CAACs‟ role includes advising WRMA officers at regional level on water resourceconservation, use, and apportionment; the granting, adjustment, cancellation, or variation of any permit; and any other matter pertinent to the proper management of water resources. The delineated catchment areas comprise LakeVictoria South, Lake Victoria North, Rift Valley, Athi, Tana, and Ewaso Ngiro. It is anticipated that the present catchment areas will be subdivided as water demand increases as well as the need for moving decision makingfurther downstream.

Water Resources Management Authority : The WRMA, a corporate body that functions under the direction of agoverning board, has responsibility for water resources management. It will develop principles, guidelines, andprocedures for the allocation of water resources; assess and reassess the potential of water resources; receive anddetermine applications for permits for water use; monitor and enforce conditions attached to the permits for water use; regulate and protect the quality of water resources from adverse impacts; manage and protect catchment areas;determine charges and fees to be imposed for the use of water from any water source; gather and maintaininformation on water resources from time to time in order to publish forecasts, projections, and information on water resources; and work with other bodies for the better regulation and management of water resources. The Authorityshall be responsible for coordination and implementation of the IWRM Plan.

A lot of progress has been made in rolling out the CMS. These CMS are pivotal to the implementation of the IWRM plan in the context of the Kenya‟s hydrological boundaries set up under the current water resources management regime. The WRMA established CAACs offices in the regions, whose membership consists of government officials,water users and communities. The CAACs‟ role includes advising WRMA officers at regional level on water resourceconservation, use, and apportionment; the granting, adjustment, cancellation, or variation of any permit; and any other matter pertinent to the proper management of water resources. The delineated catchment areas comprise LakeVictoria South, Lake Victoria North, Rift Valley, Athi, Tana, and Ewaso Ngiro. It is anticipated that the present catchment areas will be subdivided as water demand increases as well as the need for moving decision makingfurther downstream.

Water Services Regulatory Board: The Water Supply and Sewerage Development is the responsibility of the Water Services Regulatory Board (WSRB), which is also a corporate body. The board‟s functions include issuance of licenses for the provision of water; determination of standards for the provision of water services to consumers;establishment of procedures for handling complaints made by consumers against licensees; monitoring compliancewith established standards for the design, construction, operation, and maintenance of facilities for water services;monitoring and regulation of licensees and enforcing license conditions; advising licensees on procedures for dealingwith complaints from consumers and monitoring the operation of these procedures; developing guidelines for fixing of tariffs for the provision of water services; and developing model performance agreements for use between licenseesand water service providers.



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Water Service Boards: Kenya has been divided into economically viable Water Service Boards (WSBs) to ensurethat water is provided for every part of the country. Each WSB is responsible for the efficient and economicalprovision of water services within its area of jurisdiction and has the following functions:

Capacity building of communities to start water provision as a business Carrying out competitive selection of service providers Drawing up of service provision agreements Clustering of the spaghetti lines to known off-take and metered points to eliminate water losses through

illegal connections Elimination of cartels by setting tariffs and regulation and Ensuring equitable distribution of water through zoning of community service providers and enforcing

service standards as stipulated in the service provision agreements.

Membership of the WSBs includes representatives of the local authorities as directors.

Water Service Providers: The actual water service delivery shall be done by a water service provider (WSP). AWSB, therefore, enters into a service agreement with a WSP in writing for the purpose of providing water and/or sanitation services in specified areas. The WSP is required to submit a business plan and enter into a performance

contract. The regional Water Service Boards relate to the local authorities in water services provision through theappointment of directors to these water service providers or companies.

Water Appeal Board: For the purposes of administering the Water Act of 2002, those parties that may be aggrievedby a decision or order of the authority, minister, or regulatory board over a permit or a license have a right to appealto the Water Appeal Board (WAB), whose judgment shall be final. The work of the WAB is expected to increase asdemand increases, competing and conflicting needs exacerbate problems, and water scarcity begins to hit harder.

Government Ministries and Para governmental Organizations: The Ministries of Water and Irrigation, Local Authorities, Regional Development Authorities, Agriculture, and Livestock and Fisheries Development, with financialresources from the Exchequer and other lending agencies, in the past have independently developed and managedwater supplies for their sectors with no policy and very limited coordination. This may best be demonstrated by water

supplies and sanitation. Out of the 2,500 water schemes in the country, 330 government gazetted water supplyschemes served 80 percent of the population served. Before the reforms, 1,800 individual programs were operatedby the MWI, 200 by local authorities, and the other 200 by the NWCPC. The remaining 300 programs were operatedby NGOs and individuals and private companies.

Community-Based and Other Nongovernmental Organizations: Water‟s value is such an important commodity hadattracted a large number of operators including self-help groups (300 schemes), and community-based organizations(400 schemes). The entry of self-help groups and Community-Based Organizations into water service delivery hasimproved access to many communities that could not be served from publicly-run water supply schemes. However,the operation of these organizations were frustrated by poor coordination, lack of financial resources and lack of capacity. These frustrations notwithstanding, civil society entities saw an opportunity to address some of their ongoing grievances in the management of water supply and sanitation through the intended water sector reforms.

Through interaction with and between the WSTF, WSBs, and WSPs, communities in peri-urban areas and informalsettlements saw an opportunity for being empowered to manage provision of water services. A scaling-up program

planned for other informal settlements and peri-urban areas in Nairobi and other urban areas through the

respective WSBs is under way. A study that will result in a clear framework for making the Water Act of 2002

operational in rural and peri-urban water supplies and sanitation is being funded by SIDA and DANIDA.



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Nongovernmental water service providers have formed an association to galvanize their common interests such astariff negotiation and compliance with regulations.Water Resources Users Associations: Water sector development had been highly centralized. It was inevitablethat communities had to be involved in all stages of water supplies development. Gender issues were beginning tobecome a major policy interest as well. The government initiated the process of handing over completed supplies tocommunities. The WRUAs provide a forum for conflict resolution and cooperative management of water resources in

designated catchment areas. The WRUAs are responsible for conserving the watershed and advising the CAACs onthe available water that may be allocated or re-allocated to other water users.

Multi-sectoral Coordination and Implementation of Water sector : The inter-ministerial Water Sector ReformSteering Committee (WSRSC) guides and coordinates the water sector reform process, and the Water Sector Reform Secretariat (WSRS) implements the WSRSC‟s decisions. Key responsibilities and interaction are betweenthe WSRSC, MoWI, Ministry of Finance (MoF), Ministry of Local Government (MoLG), Ministry of Health (MOH),Ministry of Education (MOE), Ministry of Agriculture (MOA,), stakeholders (NGO Council, Kenya Association of Manufacturers [KAM]), WRUAs, Water Service Providers Association (WSPA), and Association of Local Government

Authorities of Kenya (ALGAK).

3.2 Tanzania National Policy and Legal Framework

3.2.1 Review of Water Related Policies

The National Water Policy 2002

The National Water Policy (2002) has the following overall objectives:

(i) To address cross-sectoral interests in water use, watershed management and participatory integratedapproaches in water resources planning, development and management

(ii) To a lay a foundation for sustainable development and management of water resources throughchanging roles of the Government from service provider to that of coordination, policy and guidelinesformulation and regulation

(iii) To ensure full cost recovery in urban areas and cost sharing in rural areas with considerations for provision of water supply services to vulnerable groups through various instruments including lifelinetariffs and

(iv) To ensure full participation of beneficiaries in planning, construction, operation, maintenance andmanagement of community based water supply schemes in rural areas.

The National Water Policy 2002 has brought about new thinking in the water sector. Firstly it recognizes that thewater resources is a finite resource which is under pressure and growing scarce as a result of increasing multi-sectoral demands of the rapidly growing populations, and a vulnerable resource due to increasing degradation(pollution, watershed degradation, over abstraction of surface and groundwater resources, wetlands degradation,water weed infestation) and natural disasters - floods, and droughts. Yet it is a source of natural capital, and acts

as a sink (receptors for wastewater discharges from municipal, industrial and agricultural sources) and thatfreshwater also sustains the integrity of ecosystems.

The National Water Policy 2002 (NAWAPO 2002) sets out the future direction for the Water Sector in achievingsustainable development and management of the Nation‟s water resources for economy -wide benefits and anincrease in the availability of water supply and sanitation services. The former approach was sector oriented not fullyrecognising the multi-sectoral linkages, and was based on regional development as the basis for planning, did notfocus on institutional and capacity and management considerations, was oriented towards the development of the



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water resources and not on the protection or management of the water resources, was based on regulation as aprimary instrument for implementing the water policy. Many of the conflicts over water use which exist today are aresult of this developmental approach.

The current policy framework for the sector is set out in the National Water Policy 2002 (NAWAPO 2002), with thevision of “a country where there is equitable and sustainable use and management of water resources for economic

development, and for maintenance of the environment.” It is oriented towards reaching the MDGs for water andsanitation in Tanzania and incorporates the overall development goals set out by the Vision 2025 and the NationalStrategy for Growth and Reduction of Poverty (MKUKUTA). NAWAPO 2002 sets out the future direction for theWater Sector in achieving sustainable development and management of the Nation‟s water resources for economy-wide benefits and an increase in the availability of water supply and sanitation services.

The water sector reforms have resulted into National Water Policy 2002, National Water Sector DevelopmentStrategy 2006-2015, Water Resources Management Act 11, 2009 and Water Supply and Sanitation Act 12, 2009.These reforms have resulted in new institutional frameworks and organization structures. The water new frameworkfor water resources management has five main levels at (i) national (ii) basin, (iii) catchment, (iv)district and (v)community and water associations. The new organizational structure of the Water Resources Division (WRD) toimplement these reforms has the following sections: (a) Water Resources Monitoring and Assessment, (b) Water

Resources Planning, Research and Development, (c) Transboundary Water Resources Management, and (d) Water Resources Protection, Enforcement and Environment, which are in line with its mandates. The organizationstructures for most of the Basin water Offices mimic that of the WRD.

These reforms are now being implemented through the Water Sector Development Programme 2006-2025. It is alsonecessary to recognize other supporting or related legislation, they include: Environment Management Act of 2004,the Fisheries Act, 2003, the National Parks Act, the Forest Act, 2002, the Mining Act, the Land Act, Land UsePlanning Act and Local Government Laws, and many others. They contain important provisions related to judicioususe of natural resources and protection of environment and ecosystem.

NAWAPO has brought about new thinking in the water sector. Firstly it recognizes that the water resources is a finite resource which is under pressure and growing scarce as a result of increasing multi-sectoral demands of the

rapidly growing populations, and a vulnerable resource due to increasing degradation (pollution, watersheddegradation, over abstraction of surface and groundwater resources, wetlands degradation, water weed infestation)and natural disasters - floods, and droughts. Yet it is a source of natural capital, and acts as a sink (receptors for wastewater discharges from municipal, industrial and agricultural sources) and that freshwater also sustains theintegrity of ecosystems.

Former approach to water resources management and development in Tanzania was sector oriented, not fullyrecognising the multi-sectoral linkages, based on regional development as the basis for planning (uncoordinatedregional and sectoral planning and development), did not focus on institutional capacity and managementconsiderations, was oriented towards the development and not on the protection or management of the WR, wasbased on regulation as the primary instrument for implementing the water policy, and resulted into many water useconflicts.

The new approach advocates integrated approach to water resources management, which is participatory, multi-sectoral, multi-disciplinary, and based on River Basins, which recognizes that water is a scarce resources and treatsit as such, integrates the linkage between land use and water use, water quality and quantity, and recognizes theimportant role ecosystems play in the sustainable development and management of water resources. The newframework also focuses on building and strengthening water resources management, and complements the servicedelivery aspects of water resources development and aims at reducing dependency on external support, and isbased on learning by doing. In essence the new approach advocates:



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• Comprehensiveness: a holistic basin approach for integrating, multi-sector and multi-objective planning,management that minimises the effects of externalities, and ensures sustainability and protection of theresource

• Sustainability : w ater resources will be utilised within sustainable limits (safe yields of surface andgroundwater and assimilative capacities for discharge of pollutants)

• Subsidiary : river basins would be the units of operational WRM (Basin Water Boards comprising basin

stakeholders with decisions on water). • Separation: WRM & regulatory functions separated from service delivery • Economic value: decision making in the public sector, private sector & in civil society on the use of water

should reflect the scarcity value of water, water pricing, cost sharing, and other incentives for promoting therational use of water

• Participatory : involvement of stakeholders in all key decisions-making• Regulatory : promotes the use of legal, technical, economic, participatory, and administrative instruments

as the basis for managing WR resources and for promoting sustainable use of the limited WR

One of the biggest challenge of the water sector has been a clear understanding of the available water resources for fair, transparent and equitable water allocation. NAWAPO requires that water resources assessment will be basedon sound scientific and technical information and understanding. It will define the status of surface and groundwater

resources in terms of quantity and quality and use on the basis of water basins and aquifer boundaries; and theinformation will be made readily accessible to users, stakeholders and decision makers.

The National Water Policy (NAWAPO) which was promulgated in 2002 sets out the future direction for the Water Sector in achieving sustainable development and management of the Nation‟s water resources for economy -widebenefits and an increase in the availability of water supply and sanitation services. It provides key principles for water resources management and aims at developing a comprehensive framework for promoting the optimal, sustainableand equitable development and use of water resources for the benefit of all Tanzanians. The policy is in conformitywith the National Environmental Policy of 1997 which is the umbrella policy governing environmental management inTanzania.

With regard to management of transboundary water resources NAWAPO recognizes Tanzania as a riparian state

and it emphasized that “In order to make effective utilization of trans-boundary water resources, efforts have to bedirected at assessing the needs of Tanzania, development of national plans and promotion of regional cooperationand integration with riparian states.” Although Tanzania is riparian to many international waters their management iscomplex and based on joint arrangements with co-riparian nations. Large scale abstractions or inter basin water transfers from these waters would require a consent from co-riparians sharing the waters. The national capacity for developing a clear strategy for managing the numerous international waters is limited. In the context of Tanzaniaeach international water body exhibits unique characteristics, both demographic and geographic. The range of water management issues can be broadly categorized as: (a) environmental management (including water pollution,biodiversity conservation, wetlands and catchment degradation, fisheries management, and water hyacinth control);(b) river basin development (for hydropower production, municipal and irrigation water supply); (c) internationalborder stabilization; (d) river regulation and control; and (e) inter-basin water transfer for consumptive uses.

National Environment Management Policy 1997

This Policy identified six major environmental problems facing the country. These include: land degradation; lack of accessible, good quality water for both urban and rural inhabitants; environmental pollution; loss of wildlife habitatsand biodiversity; deterioration of aquatic systems; and deforestation.The overall objectives of the National Environmental Policy are:

(i) To ensure sustainability, security and equitable use of resources for meeting the basic need of thepresent and future generations without degrading the environment or risking health or safety;



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(ii) To prevent and control degradation of land, water, vegetation, and air which constitute our life supportsystems;

(iii) To conserve and enhance our natural and man-made heritage, including the biological diversity of unique ecosystems of Tanzania;

(iv) To improve the condition and productivity of degraded areas including urban and rural settlements inorder that all Tanzanians may live in safe, healthful, productive and aesthetically pleasing

surroundings;(v) To raise awareness and understanding of the essential linkages between environment and

development, and promote individual and community participation in environmental action; and(vi) To promote international co-operation on the environmental agenda, and to expand our participation

and contribution to relevant bilateral, sub-regional, regional, and global organization and programs,including implementation of treaties.

In addition the Policy outlines environmental areas that need to be addressed in sectoral policies. For instance in thewater sector, the Policy identifies the following objectives that must be met:

(i) Planning and implementation of water resources and other development programs in an integratedmanner and in ways that protect water catchment areas and their vegetation cover;

(ii) Improved management and conservation of wetlands;(iii) Promotion of technology for efficient and safe water use, particularly for water and waste water

treatment and recycling;(iv) Institution of appropriate user-charges that reflect the full value of water resources.

The National Agriculture Policy (1997)

The Policy recognizes the need of enhancing agricultural technologies and practices to improve agriculturalproduction in the country. It emphasizes the need of irrigation development through the use of environmentallyfriendly technologies. In addition it highlights development of smallholder irrigation systems based on water harvesting technology and emphasizes private sector participation in agricultural production, agro-processing andmarketing of agricultural produce with the government focusing on Policy formulation and sector coordination

The National Forest Policy

The overall goal of the national forest policy is to enhance the contribution of the forest to sustainable development of Tanzania and the conservation and management of her natural resources for the benefit of present and futuregenerations.

The objectives of the national forest policy are as follows:(i) Ensured sustainable supply of forest products and services by maintaining sufficient forest area under

effective management;(ii) Increased employment and foreign exchange earnings through sustainable forest based industrial

development and trade;

(iii) Ensured ecosystem stability through conservation of forest biodiversity, water catchments and soilfertility; and

(iv) Enhanced national capacity to manage and develop the forest sector in collaboration with other stakeholders

The National Fisheries Policy (1998)

The overall goal of this Policy is to promote conservation, development and sustainable management of the fisheriesresources for the benefit of the present and future generation. The main policy strategies are:



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The main policy strategies are:(i) Instituting effective mechanism for monitoring fishing activities especially

in deep water fishing for export to minimize unrecorded exports and toensure that appropriate government revenue is collected;

(ii) Establishing conservation centres in all lake and sea waters andensure effectiveness in maintaining quality and managing the natural

ecosystem;(iii) Strengthening research and extension services for fishermen;(iv) Improving infrastructure for fish handling, processing, packaging

preservation storage and marketing.

National Irrigation Policy 2010

The main objective of the Policy is to ensure sustainable availability of irrigation water and its efficient use for enhanced crop production, productivity and profitability that will contribute to food security and poverty reduction.Eleven specific objectives are narrated. Among the specific objectives outlined in the Policy:

(i) to accelerate investment in the irrigation sector by both public and private sector players(ii) to ensure that Irrigation Development Funds are with a legal status

(iii) to promote efficient water use in irrigation system(iv) to ensure reliable water for irrigation so as to facilitate optimization, intensification and diversification of

irrigated crop production including pasture and aquaculture and

Implementation of the Policy is expected to bring up positive results such as:

(i) accelerated investment and effective management in irrigation schemes;(ii) increased private sector involvement in service provision and investment in irrigation interventions(iii) reliable and sustainable irrigation infrastructure(iv) sustainable utilization of land and water resources for irrigation(v) reliable and sustainable crop production under irrigation which does not entirely depend on rainfall will

have more contribution to food security, employment, poverty reduction and the overall economic

growth of the nation

The Policy has the following issues that are addressed under it: investment for irrigation development in Tanzania;management of irrigation schemes; irrigation research and development; promotion of appropriate irrigationtechnologies; production and productivity in irrigation schemes; training and human resource development;institutional capacity; financing mechanism as well as cross-cutting issues.

The National Gender and Development Policy (2000)

The Overall objective of the Policy is to promote gender equity and equal participation of men and women ineconomic, cultural and political matters. The Policy also fosters to have fair opportunities for women and men andaccess to education, child care, employment and decision making. The Policy recognize the need of stakeholders to

advance gender issues socially, culturally, economically and politically. Generally the Policy intends to enhancegender mainstreaming, women access and ownership to property, participation in decision making. The Policy callsalso for establishment of gender focal points at ministerial, regional and district levels to ensure gender issues areproperly addressed. The Policy also emphasize on gender equality.

The National Human Settlement and Development Policy 2000

The overall goals of this Policy are to promote development of human settlements that are sustainable as well as tofacilitate the provisions of adequate and affordable shelter to all income groups in Tanzania. The Policy has got 14



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specific objectives. Among the specific objectives the following have got great bearing on the sustainablemanagement of the environment:

(i) to protect the environment of human settlements and ecosystems from pollution, degradation anddestruction in order to attain sustainable development.

(ii) to encourage development of housing areas that are functional, healthy, aesthetically pleasant and

environmentally friendly(iii) to streamline the legal and institutional machinery for human settlement development

The Policy has three main policy issues been addressed. These are broad human settlement issues, shelter issuesand urban development issues. Among the issues discussed under the broad human settlement issues are thoserelated to environmental planning and management where the Policy clearly states that human activities take place inhuman settlements affects the environment positively or negatively, environmental protection shall be a strategicissue as far as human settlement development is concerned and thus environmental planning and management isneeded to ensure that settlements are liveable and sustainable. The Policy also takes into consideration the gender perspective in human settlement planning and development with the intention to foster equality and harmony in asociety. It recognizes that participation of women in planning and decision making as a prerequisite to the formulationand execution of workable broad based and sound human settlements‟ policies and projects bearing in mind the fact

women play a big role in the development of the country.

Generally the Policy addresses most of the pertinent issues pertaining to human settlements development in thecountry. It suggests measures to facilitate the alleviation of rural and urban problems; discourages gender discrimination in land development and or ownership; offers special attention to disadvantaged groups; and providesmeasures towards attaining and improved or conducive environment and sustainable development

The Rural Development Policy 2003

The Policy was formulated with the major aim of providing a framework and a jump-off point for harmonization,coordination and integration of sector policies and to enable smooth formulation and implementation of the ruraldevelopment strategy. Specifically the Policy strives to accomplish the following objectives:

(i) promote widely shared and broad based economic growth(ii) increase opportunities and access to social and economic services(iii) enhance good governance and(iv) build private and public sector partnership to enable greater private sector involvement in the provision

of support services, marketing of input and output and investment in the agricultural sector.

Implementation of the set objectives using the identified strategies are intended to foster socio-economicdevelopment and is expected to be attained through transformation from a predominantly rural-based subsistenceagricultural economy to a semi-industrialized one with the overall objective of eradicating hunger, diseases andignorance in order to meet the people‟s basic needs such as fundamental social services, to create resources for theimprovement of human wellbeing and of the public services, create employment opportunities to meet the growing

unemployment and resolve social and economic tensions regarding the distribution of income and wealth.

The National Energy Policy

The Government formulated this Policy with the vision to effectively contribute to the growth of the national economyand thereby improve the standard of living for the entire nation in a sustainable and environmentally sound manner.Based on the above mention Policy vision, the mission is therefore to create conditions for the provision of safe,reliable, efficient, cost-effective and environmentally appropriate energy services to all sectors on a sustainable basis.The national energy policy objectives are to ensure availability of reliable and affordable energy supplies and their



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use in a rational and sustainable manner in order to support national development goals. The national energy policytherefore aims to establish an efficient energy production, procurement, transportation, distribution and end-usesystems in an environmentally sound and sustainable manner.

The National Strategy for Growth and Reduction of Poverty (NSGRP) identifies the close relationship between goodgovernance of water resources management and the desired outcomes. This relationship shows that:

inequitable and unjust water allocation practices and ill-defined water permits that restrict access toand control over water resources pose a major obstacle to poverty reduction;

planning processes that alienate affected communities from decision making and from sharing benefitsof water development projects foster social stratification and limit the prospects of poverty reductionthrough economic growth; and

helping people to plan and manage their own water resources by ensuring participation in decision-making, creating user organizations, and transferring operations and maintenance responsibilities tothe basin level will increase empowerment and promote good governance.


The new water policy has raised many important elements that will influence the new legislation and its regulations.Important elements of the new regulations are in relation to the Boards, water user associations and catchmentOrganizations, representation of water users, fees and charges, the various standards (pollution, effluents, receivingwater quality, wastewater disposals), administration of water including water permits and resource use, issues relatedto appeals, and in relation to the application of the various instruments.

Until recently water resources management in Tanzania was governed by Water Utilisation (Control and Regulation) Act No. 42 of 1974, as amended by:

Water Utilisation (Control and Regulation) (Amendments) Act No. 10 of 1981.

Water Laws (Miscellaneous Amendments) Act No.8 of 1997.

Written Laws (Miscellaneous Amendments) Act No.17 of 1989.

Water Laws (Miscellaneous Amendments) Act of 1999.

Regulations issued in 1975, 1997 and 2002.

Section 8 of the Water Utilization (Control and Regulation) Act No. 42 of 1974 vests all water in the United Republicof Tanzania to the Government. In 1989, through the Water Utilization (Control and Regulation) Act No. 42 of 1974,as amended by Act No. 10 of 1981) the Minister for Water gazetted nine (9) water basins for the purposes of water resources administration and management. Six of these basins are international drainage basins.

The Constitution of United Republic of Tanzania (1998) also recognizes the duty to every person to protect naturalresources and it stipulates;

“Every person has the duty to protect the natural resources of united republic of Tanzania, the property of Tanzania; the property of the state authority, all the property collectively owned by the people and alsorespects another person‟s property” 1

A new Water Resources Management legislation (Act No 11 of 2009) which has recently been passed replaced theWater Utilization (Control and Regulation) Act No. 42 of 1974. The new Act operationalises the NAWAPO 2002 andthe NWSDS (2006-2015), and incorporates the principles of international water law. It also makes specific

1Article 27 of the Constitution of URT



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arrangements for the preparation of legal provisions for the implementation of regional and international agreementsconcerning the management and development of transboundary waters.

There are supporting legislation including Environment Management Act of 2004, the Fisheries Act, 2003, theNational Parks Act, the Forest Act (2002), the Mining Act (1998), the Land Act (1999), Land Use Planning Act, LocalGovernment Laws (1999), etc. They contain important provisions related to judicious use of natural resources and

protection of the environment and ecosystems.

The Legislation sets out the ownership and use-structure for water resources and the governance structure; it isempowered to make regulation for management of water resources which include National Water Boards, BasinWater Boards, Catchment and Sub-Catchment Water Committees and Water User Associations, The Water Resources Management (Water Abstraction, use and discharge) Regulation 2010. It regulatory framework for water resources management plan, protection of water reserves, restrictions during emergency such as droughts andnatural disasters, prevention of pollution, grant of user permits, dam safety and flood management, trans boundarywater strategies and policies, and offences and penal sanctions

The Act declare that all water in the country is vested to the United Republic of Tanzania, sets conditions on the useof water and authorises the Principal Water Officer with authority, to be responsible for setting policy and allocation of

water rights at the national level. For designated water drainage basins with established Basin Water Offices, theresponsibilities are under the Basin Water Officer

The Water Supply and Sanitation Act No. 12 of 2009, focuses on the supply of drinking water and sanitation services,it provides for the transparent regulation of water supply and sanitation services and the creation of authorities tomanage water supply and sanitation sustainably. It also provides for the creation of Community Owned Water SupplyOrganizations (COWSOs) to manage potable water resources at the local level.

The principles and objective‟s of the Water Supply and Sanitation Act 2009 is to promote and ensure the right of citizen of Tanzania to have access to efficient, effective and sustainable water supply and sanitation services for allpurpose in accordance with water policy 2002 while following the following principles; creation of enablingenvironment and appropriate incentives for the delivery of reliable, sustainable and affordable water supply, create

authorities which are financially and administratively autonomous and sustainable, stakeholder participation inmanagement of community water supply, promotion of public, private sector partnership in provision of services,establishment of enforcement and standard of service, protection and conservation of water resources, developmentand promotion of public health and sanitation.

The Land Act 1999 classifies land as reserved land, village land; and general land. Reserved land includes statutorilyprotected or designated land such as national parks, land for public utilities, wildlife reserves and land classified as“hazardous,” which designates land whose development would pose a hazard to the environment (e.g., river banks,mangrove swamps). Village land includes registered village land, land demarcated and agreed to as village land byrelevant village councils, and land (other than reserved land) that villages have been occupying and using as villageland for 12 or more years (including pastoral uses) under customary law, all other land is classified as general land,and the general land includes woodlands, rangelands and urban and peri-urban areas that are not reserved for public

use.

The 2009 Water Resources Act provides that the country‟s water is a public resource vested in the state, with thePresident authorized to act as trustee of the resource on behalf of the population. The Act requires anyone whodiverts, dams, stores, abstracts or uses water – other than for domestic purposes – to obtain a water permit from theBasin Water Board. Individuals and groups with legal access to land are permitted to access surface water for domestic needs without a permit. Landholders are also permitted to access to groundwater through hand-dug wellsand may construct facilities to harvest rainwater for domestic use without a permit



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Upon recommendation from the Basin Water Board, the Ministry of Water and Irrigation can declare an area to be aGroundwater Controlled Area. Anyone sinking, deepening or enlarging a bore well in a Groundwater Controlled Areamust obtain a groundwater permit from the Basin Water Board. The Ministry of Water and Irrigation and the BasinWater Boards also have authority to prevent actions causing pollution or other harm to water resources, includingthrough establishing Protection Zones around water sources and requiring permits for the discharge of effluents andother substances into water bodies

The Basin Water Board is required to recognize customary water rights as equivalent in status to granted water rights. Customary rights can be recorded and can be subject to annual fees or payment of a premium. All water rights, whether customary or granted, are subject to the management authority of the Basin Water Boards andMinistry of Water and Irrigation, which can restrict use during periods of drought and natural disasters. The ministrycan designate water resources necessary for public purposes such as fire fighting, protection of ecosystems, andproviding water to urban settlements. The statement of public purpose authorizes the minister to restrict other water uses, subject to payment of compensation to holders of permits

Tanzania‟s Forest Act (2002): classifies the country‟s forests; establishes forest governance bodies; outlinesrequirements for the creation and conversion of forest reserves and granting of forest concessions and licenses; andlike the Kenyan counterpart it sets the foundation for participatory forest management (PFM) by local communities.

Communities living in or adjacent to forests work with local forest department officials to create agreements regardingthe sustainable management of forestland. PFM can be applied to forests under full protection, production forests or mixed purpose forests. Village governance bodies are responsible for establishing a plan to manage village forestreserves in a sustainable fashion. The Forest Act does not define sustainability nor provide for external monitoringand review of forest management plans or joint forest management agreements

The Forest Act provides that all biological resources of the forest and their intangible products, including all geneticmaterial, are the property of the government and shall be preserved and used for the benefit of the people of Tanzania. The Forest Act grants the government the authority to enforce the provisions of the Act and assess finesand penalties for noncompliance.

Tanzania‟s forests include forest reserves and private forests. Forest reserves include national parks and gamereserves and central government forest reserves local government authority forest reserves, and village land forestreserves. The highest categories of protected area, national parks, permit no extractive use and requireparliamentary action to de-gazette. Nature reserves do not allow human consumptive activities, but the governmentand communities may enter into joint agreements for special purposes other categories of reserves include protectiveand productive forest reserves and can be the subject of participatory forest management arrangements between thegovernment and local communities.

Although Tanzania is rich in wetland resources, there is no systematic national programme for development andmanagement of wetland resources. Existing legislation do not provide for the protection and conservation of wetlandas unique ecosystems and sustainable sources of water however wetland are fundamental ecological services andare regulators of water regimes and sources of biodiversity at all levels that is species, genetic and ecosystem.Wetlands constitute a resource of great economic, scientific, cultural, and recreational value for the community; theyplay a vital role in climate change adaptation and mitigation. Progressive encroachment on, and loss of, wetlands inmost cases cause serious and sometimes irreparable environmental damage to the provision of ecosystem services.

The Wetland management in Tanzania like its counterpart the Kenya and Uganda is in the most sectors dealing withwater resources, because wetland management is cross cutting and many of them are not protected. It is always achallenge to coordinate all the key players involved in the management of water. There are no adequate mechanismsto co ordinate participation by the different that are often mandated to deal management of water resources andnatural resources.



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The wildlife legislation seek to ensure protection and utilization of wildlife resources whose objective are establishingprotected area, conservation, devolution of management roles to local community. Unlike Kenya whose laws thatrelate and govern the wildlife conservation are the forest Act, and Agriculture Act.

Land Act, 1999 as amended in 2004 recognizes the role of land in economic and urban development. The law

provides for technical procedures for preparing land use plans, detailed schemes and urban development conditionsin conformity with land use plan and schemes. The LGA has the power to impose conditions on the development of any area according to the land-use planning approved by the Minister the Town and Country Planning OrdinanceCap 378 of 1956 as amended in 1993 is the main urban land-use planning guide and it provides for specificregulations to address ecologically fragile lands for conservation.

It is always a challenge to coordinate all the key players involved in the management of water. There are noadequate mechanisms to coordinate participation by the different that are often mandated to deal management of water resources and natural resources, there is a need of developing and harmonize national water laws to supportthe existing efforts towards water governance.


Institutions involved in the Water Sector include Ministry of Water and Irrigation‟s (MoWI) whose functionscomprise of policy and strategy development, coordination of the planning process and financial mobilization for projects of national importance. With regard to water resources management, MoWI ensures policy sectoralplanning and coordination, deals with transboundary water resources issues of national interest, develops water resources of national interest, maintains WRM sub-sector information, monitors NWB and BWBs, and supervisesWater Resources Institute and Drilling and Dam Construction Agency. Other ministries and institutions includeMinistry of Natural Resources and Tourism (MNRT); Ministry of Agriculture, Food Security and Cooperatives (MAFC);Ministry of Energy and Minerals (MEM); and Tanzania National Parks (TANAPA).

Other specific institutions and ministries include National Water Boards whose main responsibilities consist of the

integrated sustainable management and development of water resources of the river basins in the country includingtransboundary waters; Water Supply and Sanitation Authorities (WSSAs) that manage and develop water supplyand sewerage infrastructure. WSSAs are responsible for preparing business plans to provide water supply andsewerage services including capital investment plans. The functions of the WSSAs comprise also the securing of financing for capital investments; Community Owned Water Supply Organizations (COWSOS); LocalGovernment Authorities (LGAs) including Municipal and District councils are responsible for coordinating thephysical planning with WSSAs and coordinating WSSAs budgets within Council Budgets. The overarching legislationfor urban development and environmental management is the Local Government (Urban Authorities) Act Number 8 of 1982 as amended. The Local Government (District Authorities) Act Number 7 of 1982 also has relevance tourban matters in respect of Townships and Minor Settlements. Local government authority (LGAs) are alsomandated to make appropriate by-laws for specific issues. These two Acts establish the respective institutions andconfer specific responsibilities and functions with respect to land-use planning and management, urban development

and environmental management. Ministry of Finance (MoF) is responsible for overall planning and budgeting.

The Prime Ministers Office - Regional Administration and Local Government (PMO-RALG) is involved incoordinating planning of projects from local government authorities and their budgets. The Division of theEnvironment (DOE) in the Vice-President‟s Office and the National Environmental Management Council (NEMC)are responsible for environmental management, providing umbrella policy and legislation, and EIA procedures andguidelines, regulations and standards. The Environmental Management Act Number 20 of 2004 is an Act thatgives powers to several actors to take charge of specific aspects of the national environment.



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The Ministry of Lands and Human Settlement is also concerned about water resources, particularly the availabilityof potable water for urban settlements, and inundation. Ministry of Communications &Transportation isconcerned about water resources since highway construction frequently disrupts run-off patterns and increases river siltation levels. The Ministry of Trade & Industry focuses on both industrial water requirements and effluentdischarges. Non-Governmental Organizations (NGOs) are also playing an increasing role in water-relateddevelopment, and are recognized as a key partner in facilitating rural development.

With the role of Government, through the Ministry responsible for Water, changing to that of co-ordination, policy andguideline formulation, and regulation, new institutions will need to be created. These are the National Water Board,Basin Water Boards, Catchment Water Committees, and Water User Associations or Groups.

National Water Board : The National Water Board (NWB) will be an advisory to the Minister responsible for water.The Board will oversee, co-ordinate and facilitate the activities of Basin Water Boards, and will employ the staff necessary to carry out its functions and responsibilities.

Basin Water Boards: The Basin Water Boards will be financially and administratively autonomous, and will befinanced through water user charges. The Boards will employ the staff necessary to carry out their functions andresponsibilities, and will be accountable to the National Water Board. Water users will participate in WRM processes

through representation on the Boards and appropriate stakeholder fora. The responsibilities of the BWO includeallocation of water and granting water rights, monitoring use, enforcement of condition of the water rights, resolutionof water use conflicts; monitoring water quality, granting [wastewater] discharge permits, and enforcement of pollutioncontrol regulations. Some of these mandates such as pollution control and source protection (under the Water Utilization and Control Act and the proposed Water Resources Bill) are linked with the responsibilities of other agencies under the Environment Management Act of 2004 (EMA)

Catchment and Sub-catchment Committee: The Catchment and Sub-catchment Committees will be autonomousbodies, financed from user charges, and will carry out such functions as are delegated by the Basin Water Board.They may employ staff necessary to carry out these functions, or may be supported by Basin Water Board staff.

Water User Associations: Water User Associations will be legally constituted bodies drawing their membership

from water users in a particular locality. They may need to employ a few staff in order to carry out the limitedfunctions at the local level and the costs of the Association will be borne from charges levied on its members.

Functions and Responsibilities of New Organisations

The new institutional framework for water resources management is set out in Figure 3 and the main functions andresponsibilities of each organisation in the framework will be as follows:

Functional Responsibilities for Water Resources Management

Table 1 Functions and Responsibilities for water Resources Management in Tanzania

Organisation Functions and Responsibilities

Minister responsible for Water Presents national policy and strategy to the Government.Ensures policies and strategies are implemented.

Appoints Chairperson and members of National Water Board and Basin Water Boards.Determines a mechanism for appeals from all levels of framework.

Ministry responsible for Water Provides for sectoral co-ordination, monitoring and evaluation.Develops and reviews policies, strategies, including legislation and financing.



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Formulates technical standards and WRM guidelines.Ensures dam safety.Monitors Water Quality.Deals with trans-boundary issues of national interest.Develops water resources of national interest.Maintains national WRM sub-sector informationMonitors the National Water Board and the Basin Boards.Supervises the Water Resources Institute. (Agency).Supervises the Drilling and Dam Construction Agency.

National Water Board Co-ordinates and harmonises strategic actions of Water Basin Boards.Co-ordinates and endorses basin plans (e.g. sectoral and inter-sectoral, investmentpriorities and financing patterns, inter-basin water transfer).Co-ordinates technical trans-boundary water resources management issues of national interest.Resolves inter-sectoral / inter-basin conflicts.Co-ordinates information management and assessment of water resources (e.g.hydrological, hydrogeological information, water and discharge permit registers,registers of water user associations etc).Supports basin water boards in the formation of water users‟associations/catchment organisations.

Serves as a communication channel between the water basin boards and theGovernmentCo-ordinates and facilitates the conduct of water audits and provides technicalsupport

Basin Water Boards Data collection, processing and analysis for WRM monitoring and resourceassessment.Co-ordinates technical aspects of trans-boundary issues in the basin.Co-ordinate and approve basin WRM planning / budgets.

Approve issue and revoke water use and discharge permits.Enforce water use permits and pollution control measures.Co-operate between sectors at the local level.Resolve conflicts between water users.Co-ordinate stakeholders.

Integrate district plans into WRM plansCatchment / Sub-catchment Water Committees

Co-ordinate and harmonise catchment/sub-catchment integrated water resourcesmanagement plans.Resolve water resources conflicts in the catchment/sub-catchment, and other delegated responsibilities from Basin Water Board.

Water User Associations Manage allocation of water resources at local level.Manage equitable allocation of water resources during drought.Mediate in local disputes.

Regional Secretariat Representation on Basin Water Boards.

District Councils Representation on Basin Water Boards.Representation on Catchment Committees.Formulate and enforce bylawsPromote efficient water utilisation

Prepare district plans



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Figure 3 Institutional Framework

Ministry responsible for

Water National Water

Board

Basin Water Boards

Catchment Water Committees

Sub-catchment Water Committees

Water User Association

Ministry department

responsible for Water

Resources

Membership of Water User Association

Inter – sectoral WRM planning

Coordination of Basin plans

Inter- basin planning

Conflict management

Management of allocated resources

Crisis management during drought

Conflict resolution

Basin WRM planning & managementData collection, processing & analysis

Approve rights and discharge permits

Enforcing rights and permits

Pollution control

Catchment planning and management

Date collection

Conflict resolution

Sub-catchment planning /managementData collection

Conflict resolution

Minister responsible for Water

Delegated Authori

WRM Responsibili

Planning process

Representation

Coordination

Statutory/Autonom

Bodies

Legend

District

Councils

A p p e a l s

WRM policies

WRM financing polic

Standards & Guideline

Trans-boundary issues

Dam Safety

Monitoring & evaluati

Water Users

Regional

Secretariat



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3.3 Uganda National Policy and Legal Framework


National Water Policy 1999

The overall policy objective for water resources management in Uganda is to manage and develop the water resources of Uganda in an integrated and sustainable manner, so as to secure and provide water of adequatequantity and quality for all social and economic needs of the present and future generations with the full participationof all stakeholders.

The National Water promotes the principle of integrated water resources management as a means for ensuringsustainable management and utilization of Uganda‟s water resources. The objectives of the water policy are to:

(i) Manage and develop the water resources of Uganda in an integrated and sustainable manner, so as tosecure and provide water of adequate quantity and quality for all social and economic needs of thepresent and future generations with full participation of all stakeholders;

(ii) Ensure sustainable provision of safe water within easy reach and hygienic sanitation facilities, basedon management responsibility and ownership by the users, to 77% of the population in ruralareas and 100% of the urban population by the year 2015 with an 80-90% effective use andfunctionality of facilities; and

(iii) Promote development of water supply for agricultural production in order to modernize agriculture andmitigate effects of climatic variations on rain fed agriculture

In addition to the above stated objectives, the water policy also recognize the need for cooperation on transboundarywater resources management issues and promotion of decentralization of water management functions

The National Trade Policy 2008

The National Trade Policy was formulated in 2008 and its vision is to transform Uganda into a dynamic andcompetitive economy in which the trade sector stimulates the productive sectors and to trade the country out of poverty into wealth and prosperity. The ultimate goal of the Policy is to create wealth, employment, enhancing socialwelfare and transforming Uganda from a poor peasant society into a modern and prosperous society. This Policycharges the Government to eliminate barriers to trade, and providing an enabling environment in which the privatewill thrive and build capacity to produce quality goods and services competitively, reliably and on a sustainable basis.In addition the Policy identifies the salient relationship and linkage between the trade sector and the productivesectors such as agriculture and industry for exploitation as crucial pillars in the move towards transformation.

The Uganda Wildlife Policy 1999

The overall aim of the Policy is to promote the long term conservation of the country‟s wildlife and biodiversity in acost effective manner which maximizes the benefits to the people of Uganda. The Policy intended to address thefollowing national challenges:

(i) protection of areas with high levels of biological diversity that are representative of the major habitats of Uganda

(ii) sustained management of Uganda‟s wildlife and protection of threatened and endangered species



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(iii) inclusion of the private sector, communities, NGOs, and others in policy implementation and themanagement of the country‟s natural resources

(iv) provision of a framework for the management of wildlife outside protected areas, with districtauthorities and rural communities playing a central role,

(v) management of wildlife conservation areas according to a comprehensive national strategy andapproved management plans

(vi) establishment of wildlife-related monitoring and research which directly contributes to wildlifemanagement and conservation.

The Policy addresses nine important areas of concerns. These areas are species conservation and management;conserving wildlife in protected areas; people occupying protected areas; conservation of wildlife outside protectedareas; wildlife use rights; problem animal control; tourism development; wildlife education; and wildlife extensionservices

The Energy Policy for Uganda 2002

The Policy goal is to meet the energy needs of Uganda‟s population for social and economic development in anenvironmentally sustainable manner. Specifically the energy policy seeks to meet the following broad objectives:

(i) to establish the availability, potential and demand of the various energy resources in the country(ii) to increase access to modern affordable and reliable energy services as a contribution to poverty

reduction(iii) to improve energy governance and administration(iv) to stimulate economic development and(v) to manage energy-related environmental impacts

Under specific objective five the policy stipulates clearly that environmental considerations shall be given prioritywhereby energy suppliers and users shall protect the environment by complying to set environmental protectionguidelines and standards.

The National Oil and Gas Policy for Uganda 2008

The ultimate goal of the Policy is to use the country‟s oil and gas resources to contribute to early achievement of poverty eradication and create lasting values to society. The policy has ten specific objectives including to ensureefficiency in licensing areas with the potential for oil and gas production in the country and to ensure that oil and gasactivities are undertaken in a manner that conserves the environment and biodiversity. The policy is based on fiveprinciples which are: using finite resources to create lasting benefits to society; efficient resources management;transparency and accountability; protection of environment and biodiversity; spirit of cooperation; and capacity andinstitutional building. Oil and gas activities are expected to have a positive impact on the country‟s plan for modernization of agriculture through the enhancement of areas with multiplier effects, like provision of energyservices and infrastructure to rural agro-processing industries, together with the increased use of modern andmodernized agriculture through provision of more affordable inputs like fuels and fertilizers. The policy also

addresses the cross-cutting issues between oil and gas activities and the country‟s education and research plans,employment opportunities and patterns, population distribution, land ownership and use, energy availability together with relationship with other countries.

The National land Use Policy 2007

The overall goal for the national land use policy is to achieve sustainable and equitable socio-economic developmentthrough optimal land management and utilization. The specific goals of this policy include ensuring adequatelyplanned land use systems that provide for orderly and sustainable urbanization, industrial and infrastructural



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development; adopt improved agriculture and other land use systems that will provide lasting benefits for Uganda; toreverse and alleviate adverse environmental effects at local, national, regional and global levels; to promote land useactivities that ensure sustainable utilization and management of environmental, natural and cultural resources for national socio-economic development; to ensure planned, environmentally friendly, affordable and well-distributedhuman settlements for both rural and urban areas; and to update and harmonize all land use policies and laws andstrengthen institutional capacity at all levels of the Government. The policy has 33 policy statements ranging from

making available on regular basis land use/land cover data which are of sufficient details an effectively disaggregatedto enhancing implementation of regional and international conventions and other protocols to which Uganda is (or willbe) a signatory and in compliance with national laws, policies regulations and guidelines.

The need for an integrated approach towards land use planning is highlighted. The coordination of activities of allstakeholders in land use planning is emphasized. In particular the involvement of land owners, community groups,women, youth and the poor in making land use related decisions that affect them is regarded as being critical in thesuccessful implementation of the policy.

The National Industry Policy 2008

The vision of this policy is to build the industrial sector into a modern, competitive and dynamic sector fully integrated

into the domestic, regional and global economies. The policy is based on the following principles:(i) exploiting and developing natural domestic resource-based industries such as petroleum, cement and

fertilizer industries and promoting competitive industries that use local raw materials(ii) agro-processing; focusing on processing, leather and leather products and value addition in niche

exports(iii) knowledge-based industries such as ICT, call centres, and pharmaceuticals that exploit knowledge in

science, technology and innovations(iv) engineering for capital goods, agricultural implements, construction materials and fabrication/ “jua kali”

operations.The policy has 12 specific objectives ranging from creating a business friendly environment for private sector ledindustrialization in which industries will develop, improve productivity and the quality of products through inter alia, creativity and innovation and become more competitive in the global economy to creating jobs for the widest section

of the population. The Policy sets out strategic direction for industrial development in the country and the givenprinciples are expected to be sufficiently robust to guide Uganda. The policy further addresses the constraints as wellas priorities regarded as key to sustainable industrial development in the country.

The National Policy for the Conservation and Management of Wetland Resources 1995

This Policy aims at curtailing the rampant loss of wetland resources and ensuring that benefits from wetlands aresustainable and equitably distributed to all people of Uganda. The Policy therefore calls for

(i) no drainage of wetlands unless more important environmental management requirements supersede(ii) Sustainable use to ensure that benefits of wetlands are maintained for the foreseeable future(iii) Environmentally sound management of wetlands to ensure that other aspects of the environment are

sustained

(iv) Equitable distribution of wetland benefits and(v) Application of environmental impact assessment procedures on all activities to be carried out in a

wetland to ensure that wetland development activities are well planned and managed.

The Policy also highlights the key principles and identifies key ecological functions of wetlands in relation to water asmaintenance of the water table, reduction of extreme flows, sediment trap, prevention of erosion downstream of wetlands, source of water supply, and prevention of pollution (nutrient and toxin retention).

The National Environmental Management Policy 1994



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The overall goal of this Policy is “Sustainable social and economic development which maintains or enhancesenvironmental quality and resources productivity on a long term basis that meets the needs of the present and futuregenerations without compromising the ability of future gener ations to meet their own needs”. The Policy provides for establishment of effective monitoring and evaluation system to assess the impact of different sectoral policies andactions on the environment, population and the economy.

Generally the National Environmental Management Policy seeks to:

(i) set the overall goal, objectives and key principles for environmental management;(ii) provide broad policy framework for harmonization of sectoral and cross-sectoral policy objectives,

principles and strategies;(iii) transform existing environmental management systems to establish an integrated and multi-sectoral

approach to resource planning and management;(iv) promote positive behavioral/attitudinal change in resource use(v) provide the basis for the formulation of comprehensive environmental legal framework;(vi) establish an effective monitoring and evaluation system as well as an environmental impact

assessment process and standards mechanisms;

(vii) provide for an effective information management system to facilitate collection, storage , analysis anddissemination of environmental information, among others

The Policy under chapter three provides cross-sectoral policy objectives, principles and strategies for priority cross-sectoral policies to enhance integrated and multi-sectoral systems approach to planning and management of resources and the environment for sustainable socio-economic development. Section 3.5 provides the objective foewater resource conservation and management as “to sustainably manage and develop the water resources in acoordinated and integrated manner so as to provide water of acceptable quality for all social and economic needs”The Policy also highlights the guiding principles and strategies to implement the Policy.

The National Forestry Policy 2000

The Policy under its 8th statement which is on watershed management and soil conservation categorically states that,“...watershed protection forests will be established, rehabilitated and conserved”. Based on that statement theGovernment declared to promote the rehabilitation and conservation of forests that protect the soil and water in theUganda‟s key watersheds and river systems. According to this Policy, the following measures are provided:

(i) Develop and promote guidelines on the management of riverside forests,(ii) Develop accompanying regulations to the provisions of the National Environment statute (1995), the

Water statute (1995) and others relating to watershed management, soil conservation and theprotection of riverbanks and lakeshores,

(iii) Develop and promote awareness, educational and community mobilization programmes to promotegood integrated land use practices in hilly areas and protect watersheds from degradation.

The National Fisheries Policy, 2000

This Policy was enacted purposely to guide the sustainable management and exploitation of fisheries resources inUganda. Specifically the Policy aimed to give both the local government and local communities‟ responsibilities inrespect to sustainable fisheries resources management, development and utilization. Furthermore, the Policy calledfor legal recognition of fisheries communities and their and their rights of management of the resources in their respective localities.



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Aquaculture is highly emphasized in the Policy as one of the strategies for increasing fish production so as to have abalance between fish supply and demand. All these interventions have significant implication on water resourcesespecially with respect to water quality issues.

The National Health Policy

The health Policy for Uganda clearly stipulates the need of better sanitation services to the people of Uganda. Ittherefore emphasizes the war against poor sanitation to be intensified so as to maintain the so far attained gains. ThePolicy prioritizes the support to local governments and authorities so as to improve sanitation and general hygiene.

The Tourism Policy for Uganda

This Policy and the related specific strategies addresses the tourism resource base, product development andmarketing, general support and communication, development framework as well as regional and internationalcooperation. The Policy further identifies the major issues of strategic importance in the implementation of the policywhich include increasing safety and security measures, improving the image of Uganda through a series of promotionand marketing, introducing new and tailor-made organizational structure to provide and appropriate developmentframework. The Policy also set interventions to be implemented under this Policy. Some of the interventions identified

include sensitization of districts and communities in respect of tourism development and protection of cultural andnatural resources, formation of district tourism associations and defining priority tourism projects for district andnational tourism development.

The National Gender Policy

The Policy recognizes women and children as the main carriers and users of water. It emphasizes the importance of gender responsiveness in terms of planning, implementation and management of water and sanitation initiatives. ThePolicy stipulates its overall objective as to mainstream gender concerns in the national development process in order to improve the social, legal/civic, political, economic and cultural conditions of the people of Uganda and women inparticular. The Policy specific objectives area:

(i) To ensure the participation of both women and men in all stages of the development and planningprocess and

(ii) To promote equal access to and control over economically significant resources and benefits

The Government based on the National Gender Policy developed the Water Sector Gender Strategy in January 2003with the purpose of providing stakeholders with operational guidelines on how gender principles will be mainstreamedwithin the water sector and its goal is to develop empowering approaches that will enhance gender equity,participation and access and control to resources in the water sector and thus reduction of poverty.

It was note during preliminary discussion that Uganda water Policy is being reviewed but it is anticipated that therewill be no major changes. Important aspect for policy implementation is availability of funds for implementation.


Uganda has undertaken a series of ambitious legal and policy reforms with regard to property rights and resourcegovernance

The constitution of Uganda provides for an individual right to own property either individually or in association withothers2 to a clean and health environment3, the constitution also gives fundamental rights to any citizen to seek legal

2Article 26(1) of the Constitution of Republic of Uganda



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redress for breach of right even if the same is done to another person, it gives a person a legal ground to standbefore the courts of law4.

The issue of land management and natural resources is addressed and the government is said to hold the land andnatural resources in trust for the people of Uganda5, together with land management issues the environment is anissue that is recognized by the constitution and it provides for protection and preservation of the environment for

sustainable development and promotion of environmental awareness6

In Uganda, water resources management issues are dealt with various legislations and as stated above theconstitution which is the fundamental law recognizes that it is the duty of the state to take care of the management of natural resources including water in trust for its people of Uganda.

The Water Act, as a principal law for the management of water resources in Uganda, provides for protection,management of water resources, supply, use and the constitution of water and sewerage authorities; and thedevelopment of water supply and sewerage undertakings and all other related matter. It also provides for planning,and control of water use7 this goes hand in hand with the objective of Uganda water policy (1999) which among theobjectives is; to manage and develop the water resources of Uganda in an integrated and sustainable manner, so asto secure and provide water of adequate quantity and quality for all social and economic needs of the present andfuture generations with the full participation of all stakeholders”

The Water Resources Regulations (1998) and Water (Waste Discharge) Regulation (1998) prescribe the thresholdand procedure for applications to construct any works that use or discharge water under the Water Act

The Water Resources Regulations (1998) authorize the Director of the Water Development to grant surface water and groundwater permits, and to attach conditions to the permits. The Regulations provide for easements, water charges, register of waterworks, and penalties. In practice, citizens make considerable use of water without formalauthorization. The Water (Waste Discharge) Regulations (1998) prohibit discharge without a permit issued by theDirector of Water Resources.

Several other water related legislation include National Environment Act, Cap 153, An Act to provide for sustainablemanagement of the environment; to establish an authority as a coordinating, monitoring and supervisory body for thatpurpose; and for other matters incidental to or connected with the environment, it provides for environmentalmanagement regulations, rights, institutional arrangement such as establishment of National EnvironmentManagement Authority, which is an authority entrusted with environment issues, establishment of environmentalstandards, . Management of river banks and lake shores, Restrictions on the use of wetlands Management of wetlands, conservation, Management of forests Land use planning, Protection of natural heritage sites, Protection of the ozone layer, waste management, control and prohibition of pollution

Land Act 1998 provides for management, ownership and tenure of land, The Act vests the rights of water resourcesto the government and provides for the Minister to regulate such utilization to land the owners, for domestic purposeand agricultural purposes. However the land statute has no power to control land degradation, the law need to have

power to control land degradation. Irrigation is another major water use and in most cases targets wetland area thereis no law relating to irrigated agriculture is scattered over many pieces of legislation, there is no legislation that dealsspecifically with irrigated agriculture.

3Article 39 of the Constitution of Republic of Uganda

4Article 50 of the Constitution of Republic of Uganda

5Article 237 of the constitution of Republic of Uganda

6Article 245 of the constitution of Republic of Uganda

7Ss 16,17, 18 and 28 of Water Resources Act 1995

http://www.eoearth.org/article/Agriculture




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The Water Act provides for the use, protection, and management of water resources and supply and for theconstitution of water and sewerage authorities. The objectives of the statute are, inter alia, to allow for the orderlydevelopment and use of water resources for purposes other than domestic use, such as irrigation and agriculture, inways that would minimize harmful effects to the environment. Domestic use, as interpreted herein, includes use for the purpose of irrigating a subsistence garden, general rights to use water for irrigation where there is a naturalsource of water are limited to irrigating a subsistence garden and extraction of water is prohibited unless authorized.

The National Environment Act which established the National Environment Management Authority (NEMA) providesfor the sustainable management of the environment among other things. Projects relating to dams, rivers, and water resources are to be considered for environmental impact assessment before they can take off. The NEMA, inconsultation with the leading agency, is required to establish minimum water quality standards for different usesincluding water for agricultural purposes. 8

The Environmental Impact Assessment Regulations 13/1998 require a developer seeking to implement a project for which an environmental impact assessment is required under the statute to carry out such an assessment. However the environment impact assessment lacks the capacity to ensure that transboundary water resources are managed inintegrated and environmentally sustainable manner as it lacks provisions relating to assessment of transboundaryimpacts.

The local Government Authority Act 1998 provides for water resources maintenance, plan for interventions accordingto identified local priorities. It aims to put into effect the decentralization and devolution of functions, powers, andservices. The provision and maintenance of water supplies is vested in the district councils in liaison with the Ministryresponsible for Natural Resources.

The National Forestry and Tree Planting Act (2003) provides for the conservation, sustainable management anddevelopment of forests; declaration of forest reserves for purposes of protection and production; the enhancement of the productive capacity of forests; promotion of tree planting; consolidation of law; and establishment of the NationalForest Authority and the District Forestry Office. Other forestry related legislation includes: the NationalEnvironmental Management Act (1998);

Amongst the principles that guide the sustainable environmental management as per the National EnvironmentManagement Act are conservation measures, maintaining ecological and landscape properly and to protect forestsand agro-forestry and prohibiting the burning of grass in areas of intensive agriculture or on steep slopes

Other sectoral legislation which touches on water resources management include The National Forestry and TreePlanting Act (2003) provides for the conservation, sustainable management and development of forests; declarationof forest reserves for purposes of protection and production; the enhancement of the productive capacity of forests;promotion of tree planting; consolidation of law; and establishment of the National Forest Authority and the DistrictForestry Office.

This Act requires that forest reserves should be adequately protected and conserved because forests play a vital role

in moderating of the climate and maintain the water table.

The main weakness in the Forest Act is that it does not have adequate provisions relating to the management of private forests, which, like natural forests, play a major role in maintaining the ecological equilibrium.

Other forestry related legislation includes: the National Environmental Management Act (1998);

8Marty Matlock (Topic Editor) "Water profile of Uganda". In: Encyclopedia of Earth.

http://www.eoearth.org/article/Water_resources


http://www.eoearth.org/article/River



http://www.eoearth.org/article/Environmental_impact_assessment




http://www.eoearth.org/profile/Marty.matlock

http://www.eoearth.org/profile/Marty.matlock





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Amongst the principles that guide the sustainable environmental management as per the National EnvironmentManagement Act are conservation measures, maintaining ecological and landscape properly and to protect forestsand agro-forestry and prohibiting the burning of grass in areas of intensive agriculture or on steep slopes

National Environment (Wetlands, River Banks and Lake Shores Management) Regulations, 2000.The objective of these Regulations is to ensure wise use of the country‟s wetlands. They require the undertaking of an Environmental

Impact Assessment when any activity is to take place in a wetland and apply to both wetlands of national andinternational importance. The tool used in these Regulations to regulate and ensure wise use of wetlands is thediscussed. The National Environment Act, therefore, has a number of provisions aimed at either preventing or stopping land degradation, The Act provides for the restriction of use of wetlands and cultivation of wetland andfishing activities9

The Land Act reiterates Article 237 (b) of the Ugandan Constitution on protection of natural resources which includewetlands; it also restricts issuance of land title in respect of wetland or within regulated lakeshore and river bankszones10

The Uganda Wildlife Act, 1996, provides for the sustainable management of “Wildlife” which is defined in broad termsto include both animal and plant species. It creates the Uganda Wildlife Authority as the principle institution chargedwith overseeing the management of wildlife. The Statute preserves community property rights so that localcommunities and individuals who have property rights in land within the protected areas are permitted to continueactivities compatible with conservation of wildlife resources.

The Local Governments Act, 1997, is also an important law for the enforcement of environmental law given the policyof decentralization as well as the policies relating to natural resource management at the lowest levels. This lawprovides for the system of local government, which is based on the District, which is the highest political authority atDistrict level and has both legislative and executive powers. Under the District are the lower local governments andadministrative units. The lower local government councils consist of sub-county councils (in rural areas), urbancouncils (in towns), division councils and village councils. The enactment of the Local Governments Act, 1997, andadoption of the Decentralization Policy made management of the environment a function of the Central Government.However, given the nature and definition of the environment, certain components of the environment, some functions

of the environment have been decentralized to promote and encourage their democratic management.

Fisheries Act 1964, is an Act which makes provision for the control of fishing, conservation of fish, processing of fishand matters connected therewith. Despite of having this Act still there a need for having coordinating bodies atvarious levels of governments, local, regional and international to carter for multi sectoral, because there is a largenumber of water related sectors having legislation of their own but their work are either duplicated, their mandateconflict one another and or are in conflict.

Nile Basin Initiative and other regional bodies have responsibilities for the management of Transboundary water bodies and water ways.

The Constitution (1995) empowers government to protect in trust all natural resources including water. There are alsoother laws enacted by the Government which govern water resources and those are mentioned above and they arethe National Environment Act (1995),Wildlife Act1996, the Fisheries policy [2002, the Water Act 1995, NationalForestry and Tree Planting Act (2003), Land Act 1995 just to mention a few.

A number of institutions have a stake in the management of water bodies depending on use; there is usually a

9Ss. 36 (1), a-d, ,36(3),of the National Environment Act 1995

10Section 44 (4) of the Land Act 1995



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conflicting resulting from their mandates. . The good example is in the Ministry of Water is the lead agency for water issues, but it's the responsibility of Ministry for Agriculture to provide water for production. The fisheries department isalso responsible for managing the fish in Uganda, Wildlife Authority located in another ministry. The Wetlandmanagement in Uganda is in the most sectors because wetland management is cross cutting and many of them arenot protected. It is always a challenge to coordinate all the key players involved in the management of water. Thereare no adequate mechanisms to co ordinate participation by the different that are often mandated to deal

management of water resources and natural resources. This is topped up by inadequate laws and regulations, lack of law enforcement. The law enforcement which is a decentralized function needs to be beefed up with personnel,techniques and equipments to deal with the actual issues.

There is a need of developing and harmonize national water laws to support the existing efforts towards water governance


The structure at national, district and local levels for handling the water resources management functions outlinedabove is as follows:

National level: The Minister for responsible for water resources has overall responsibility for initiating the nationalpolicies, setting standards and priorities for water resources management in the country. The Water PolicyCommittee (WPC), advises the Minister on the above functions and initiate revisions to legislation and regulationsand coordinate sector ministries' plans and projects affecting water resources. WPC also has the role to coordinatethe formulation of an international water resources policy.

Members of the WPC will come from relevant government ministries and departments, and will includerepresentatives from district administrations, private sector and NGOs. The Chairman will be the PermanentSecretary of the Ministry of Natural Resources, and the Directorate of Water Development (DWD) will provide theSecretariat for the WPC. The functions and composition of the WCP are stipulated in the Water Statute (1995).

District level: District Councils form a District Environment and Natural Resources Committee and a Department

with the same name comprising water, environment, forestry and meteorology, coordinate existing extension staff inthe areas such as water, community development, health, agriculture, fisheries and livestock - to ensure that water resources and environmental aspects form part of an integrated extension strategy.

Municipal/Urban Council level: The districts, under the Local Government Act (1997), have responsibility for water supply services. Municipalities or town councils being large stakeholders in the water supply systems play a leadingrole in partnership with the water user groups/associations/authorities to operate, maintain and manage urbansupplies for domestic and industrial use. The urban councils handle licensing of industries, solid and sewerage wastedisposal and drainage systems, and hence, a increasing role to play in the management and protection of water resources.

Sub-County level: Under the Local Government Act, the Sub-County is a legal entity. These entities have

responsibilities in the areas of provision of water and sanitation services and protection of natural resources includingwater, with the assistance of the extension staff.

Local level: at the local level Water user groups will manage, operate and maintain point water sources. The policyalso provides for the formation of Community associations the purpose of managing resources such as a wetlandarea, a fishpond or an irrigation scheme when such a need arises. As well existing Local Councils (LC 1 - LC 3) andlocal government Chiefs play the role in setting local priorities and enforcing bye-laws, monitoring and mediating inwater management issues.



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River basin/catchment level: In the present policy provision has been made to create in future catchment levelinstitutions to deal with water resources management in the respective catchment areas. In the present context, ithas not been found necessary to establish catchment level institutions.

Role of the Private Sector & NGOs and other interest groups: will partner with government in implementation of strategies set out in the water policy.

Uganda is also heading towards establishing Water Resources Management Zones which will include a frameworkfor stakeholder participation and establish Management Committees. These Zones are:

(i) L. Victoria Water Management Zone(ii) L. Choga Water Management Zone(iii) Lake Albert Water Management Zone(iv) Upper Nile Water Management Zone

The Zones are important Units of Management which are similar to Kenya and Tanzania frameworks. Uganda plansto send officials to Zones starting from July 2011. Within each zone There will be catchments or Sub-zones wherestakeholder will participate at that level. WRM is Central Government function; however according to WRM principle,

there will be decentralization- lower level - Catchment/Zone. Uganda is also working to promote the TransboundaryWR Management to be Transboundary WR Dept headed by a Commissioner. The Department will coordinatetransboundary water resources function.

3.4 Rwanda National Policy and Legal Framework


National Water Policy

The National Policy for Water Resources Management (2011) is the latest development in government‟s consistent

and continuous efforts to strengthen the water resources management sub-sector. It replaces the 2004 policy andhas been necessitated by the ill-alignment between the 2004 policy and Water Law No. 62/2008, which embracedmany modern and cutting-edge principles of sustainable water resources. Additionally, the government has beenintroducing reforms in the water sector that have significantly changed the context for water resources managementand rendered the 2004 policy out of date.

The development of the 2011 policy, in keeping with the ideals of stakeholder participation, included a process of consultations with experts, senior managers and opinion leaders from different agencies and walks of life in the water sector.

The current mining policy promotes the need to use modern mining techniques that minimise harm to land, forests,water, wetlands and the environment. However, due to inadequate implementation of the policy mining activities

cause deterioration and pollution of water bodies. The WRM policy underscores the need to for appropriate mineralsexploration and exploitation techniques to prevent pollution and deterioration of the quality and quantity of water bodies.

The National Policy for Water Resources Management 2011

Rwanda is in the final stage of adopting a new water policy. This Policy has been formulated with the recognition of the strategic nature of water resources, and its vulnerability to depletion and pollution in the face of global climatechange, rising population and growing economic development. Because of the understanding of the aforesaid



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situation, the Government decided to put a robust framework for the conservation, protection and management of thecountry‟s water resources. The prepared national policy for water resource management is intended to ensure that:

(i) the national water resources are protected, conserved, managed and developed in an integrated andsustainable manner

(ii) water resources of adequate quality and quantity are available for socio-economic and ecological

needs of the present and future generations(iii) decisions affecting water resources management are made in a coordinated manner and with the

participation of all stakeholders at local, national and transboundary levels.

The Policy has seven policy statements among of them are on water resources conservation, water allocation andshared water resources.

The National Environmental Management Policy

The overall objective of the Environment Policy is the improvement of man‟s well -being, the judicious utilization of natural resources and the protection and rational management of ecosystems for sustainable and fair development.Specifically the Policy aims at achieving the following:

(i) to improve the health and the quality of life for every citizen and promote sustainable socio-economicdevelopment through rational management and utilization of resources and environment;

(ii) to integrate environmental aspects into all the development policies, in planning and in all activitiescarried out at the national, provincial and local level, with the full participation of the population;

(iii) to conserve, preserve and restore ecosystems and maintain ecological and systems functioning, whichare life supports, particularly the conservation of national biological diversity;

(iv) optimum utilization of resources and attain a sustainable level of consumption of resources;(v) to create awareness among the public to understand and appreciate the relationship between

environment and development;(vi) to ensure the participation of individuals and the community in the activities for the improvement of

environment with special attention to women and the youth;

(vii) to ensure that the basic needs of today‟s population and those of future generations are met.

The National Environment Policy therefore contains policy statements and strategic options with regard to populationand land-use management, management and utilization of natural resources and other socio-economic sectors, aswell as the necessary arrangements for the implementation of the policy. It provides a framework for thereconciliation of the three pillars of sustainable development, namely environment, social and economic issues. It isthus in line with the policy for poverty reduction while ensuring the quality of life and environment.

Economic Development and Poverty Reduction Strategy (2008 – 2012)

This strategy paper clearly stipulates that the fight against poverty relies on sustainable economic growth and it isworth identifying the potential contribution of environment to this economic growth. The exploitation of natural

resources has a direct impact on the quality of environment. The poor depend directly on resources and naturalservices for their livelihood, and they are often affected by the degradation of environment, particularly water and air pollution, exposure to toxic chemical products, etc. Moreover, the poor are particularly vulnerable to natural disasterssuch floods, drought in the east and south-east of the country, volcanic eruptions, as well as conflicts related tonatural resource control, especially land resources.

Nonetheless, poverty reduction cannot succeed without effective and real consideration of the environmentaldimension. It is for this reason that Environment is one of the first priorities identified by the Poverty ReductionStrategy in Rwanda and is among the leading fundamental programmes selected within agricultural transformation



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and rural development.

Agricultural transformation and rural development must be accompanied by environmental protection activities suchas earthworks, reforestation, water management and rational use of wetlands. The Poverty Reduction Strategyrecommends also actions in the energy sector by promoting in a special way the rational use of wood and thepromotion of alternative sources of energy. It supports water supply and actions likely to enhance rain water

harvesting and utilization in towns and “imidugudu” villages.

The National Land Policy 2000

The overall objective of this Policy is to establish a land tenure system that guarantee tenure security for allRwandans and give guidance to the necessary land reforms with a view to good management and rational use of national land resources. Specifically the National Land Policy intends:

(i) To put in place mechanisms which guarantee land tenure security to land users for the promotion of investments in land.

(ii) To promote good allocation of land in order to enhance rational use of land resources according totheir capacity.

(iii) To avoid the splitting up of plots and promote their consolidation in order to bring about economicallyviable production.

(iv) To establish mechanisms which facilitate giving land its productive value in order to promote thecountry‟s socio-economic development.

(v) To focus land management towards more viable and sustainable production by choosing reliable andtime-tested methods of land development.

(vi) To develop actions that protects land resources from the various effects of land degradation.

(vii) To establish institutional land administration arrangements that enable land to have value in the marketeconomy.

(viii) To promote research and continuous education of the public in all aspects of duties and obligationswith regard to land tenure, land management and land transactions.

(ix)

To establish order and discipline in the allocation of land and land transactions in order to controland/or curb pressure on land, inappropriate development, land speculation and land trafficking.

(x) To promote the involvement and sensitization of the public at all levels in order to infuse land usepractices that are favourable to environmental protection and good land management.

(xi) To promote conservation and sustainable use of wetlands.

The Policy further highlights general principles to guide the implementation of the Policy using various identifiedinterventions so as to attain the set objectives.

The National Rice Policy

This Policy was formulated as response to increase of r ice production in the country and thus necessitated concerted

efforts aimed at (i) enhancing the productivity levels and (ii) raising the standards of post-harvest processing of rice.The Policy also wanted to enhance competitiveness of Rwanda rice through development and implementation of policies that insist on clear rules and procedures for programmes, institutions and budgets that direct in rice sub-sector. The Policy therefore aims at achieving the following objectives:

(i) consolidate and efficiently use the land and water to improve productivity of existing rice cultivars inmarshlands

(ii) expand the area under rice cultivation by developing new marshlands and by diversifying theecosystems under which rice is growing



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(iii) improve access to and distribution of inputs such as seeds, fertilizers and pesticides to smallholder rice growers

(iv) Enhance the quality of rice grains through improved management practices of harvesting, drying andstorage of rice grains

(v) Introduce efficient and effective regulations on trading of rice grains in rural areas(vi) Raise the standards of milling operations and thereby improve the quality and competitiveness of

locally produce rice grains

The further identifies strategies and options to enable realization of the set objectives. In all doing utilization of water is a main driver to implementation of rice policy. Investment in irrigation is stated as one of the strategic optionswhere the water management committee is instructed to ensure adequate water supply even during dry seasonthrough water conservation during wet season, rain water harvesting, bore well irrigation among others.

The National Policy and Strategy for Water Supply and Sanitation Services

This Policy recognize the importance of adequate water supply and sanitation services as drivers for social andeconomic development, poverty reduction and public health and thus assigns high priority to this aspect. The overallobjective of this Policy is to ensure sustainable and affordable access to safe water supply, sanitation and wastemanagement services for all Rwandans, as a contribution to poverty reduction, public health, economic developmentand environmental protection. The specific objectives of the Policy are based on the various sub-sectors. For instance under water supply sub-sector, the specific objectives are:

(i) Raise rural water supply coverage to 85% by 2012 and to 100% by 2020 the Districts to plan, design,finance and implement infrastructure projects

(ii) Ensure sustainable functionality of rural water supply infrastructure by developing effectivemanagement structures and well-regulated public-private partnership (PPP) arrangements.

(iii) Ensure safe, reliable and affordable urban water supply services for all (100% service coverage by2012) while strengthening the financial viability of the Utility.

Under sanitation sub-sector, the specific objectives are:

(i) Raise household sanitation coverage to 65% by 2012 and 100% by 2020, and promote hygienebehaviour change.

(ii) Implement improved sanitation for schools, health facilities and other public institutions and locations(iii) Develop safe, well-regulated and affordable off-site sanitation services (sewerage and sludge

collection, treatment and reuse/disposal) for densely populated areas(iv) Enhance storm water management to mitigate impacts on properties, infrastructure, human health and

the environment(v) Implement integrated solid waste management in ways that are protective to human health and the

environment

The National Forest Policy

The overall goal of the forestry policy is stated as one of the bedrocks for sustainable development, thriving,developed, managed and utilized for sustainable benefits to all segments of society and the environment. Within thecontext of the overall goal, policy statements are set for the development of a permanent forest estate; forest-basedindustries; capacity building; urban and Peri-urban forests; farm forestry; commercial forest plantations; watershedmanagement; education, training and research; tree germ-plasm and forest biodiversity conservation . Policy statementNumber 7 on watershed protection states “watershed protection forests shall be established, rehabilitated andconserved to protect soil fertility and water quantity and quality”. Several implementation strategies are identified



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including identifying, mapping and assessing the condition and status of major watersheds in Rwanda; Rehabilitatingdegraded forests in the watersheds; developing regulations and guidelines for management of lakeshore and riverbankforests; and developing educational material and mobilizing the population to protect watersheds.

In order to implement this policy, the government places particular emphasis on the use of market mechanisms andincentives, eliciting realistic product prices and stimulating specialization and efficiency in forest resource utilization.

Critical to this is the commitment and genuine involvement of all stakeholders in decisions that potentially affect them,their work and/or mandate. In addition, while the private sector shall occupy centre stage, the government will notabdicate its responsibility as a guarantor and custodian of public good.


The constitution of Republic of Rwanda of 4/6/2003 as amended provides that every citizen has the right to live in asafe and satisfactory environment, is obliged to protect, safeguard and ensure environment promotion11

The Water Law number 62/2008 states that water is a good belonging to the state public water is the domain of thestate. Its use constitutes a recognized right in force to all in the scope of laws and regulation in use12

The water sector in Rwanda like the other countries in review has been going under a lot of reforms, currently thewater resources management is governed by the existing water and sanitation policy developed in 2004. In 2008, theLaw number 62/2008 on the use, conservation, protection and management of water resources. It incorporatedprinciples of sustainable water resources management.

Notably are the government significant reforms which revamped the water resources management systems whichprovides the legal framework for the implantation of new institutional arrangement based on the principles of thecreation of a firewall between the management of water resources and water supply and sanitation services,institutional separation of service provisions from regulation and policy making, and finally, ensuring decentralization,participation, autonomy, accountability, efficiency and financial and ecological sustainability.

Article 1 (1) – (6) provides that the Organic law aims at conserving the environment, people and their habitats;setting up fundamental principles related to protection of environment, any means that may degrade the environmentwith the intention of promoting the natural resources, to discourage any hazardous and destructive means;promoting the social welfare of the population considering equal distribution of the existing wealth; considering thedurability of the resources with an emphasis especially on equal rights on present and future generations; guaranteeto all Rwandans sustainable development which does not harm the environment and the social welfare of thepopulation; and setting up strategies of protecting and reducing negative effects on the environment and replacingthe degraded environment.13

The law relating to environment includes sections for enforcement of the law and penal provisions section sucharticle 87, 88, 89, 103, 105 and 111 of organic law and environment

The primary legislation governing the forest sector in Rwanda is the Forest Law of 1988 (No. 47/1988). The ForestLaw categorizes forestland as public, private or communal. The law governs forest management, exploitation of forest resources, forest conservation and tree-planting. The law includes sections for enforcement of the law andpenal provisions. In 2006, the government enacted the Law Determining the Organization, Functioning and

11 Article 26 , 29 2-3 of the constitution of republic of Rwanda12 Article 3 of water law , law number 62/2008 of the laws of republic of Rwanda13

Article 1 (1) – (6) of Organic Law and Environment Law No. 04/2005 of the Laws of Rwanda



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Responsibilities of the National Forests Authority, The law and the establishment of NAFA represent an initial steptoward developing an updated institutional framework for the management of Rwanda‟s forestland

Forestry partly governed by Organic law and environment since forest is regarded as part of the natural resourcesand it calls for appropriate actions to improve catchment management whose effect would be enhanced protectionand conservation of forests as a measure to contribute to the water pollution control Article 52 provides the fol lowing:

The State shall identify reserved areas for protection, conservation or rehabilitation of: 1) ecosystems; 2)forests, woodlands, species of biodiversity and protected zones; 3) monuments, historical sites and landscapes; 4) water systems and its quality; 5) banks and shores, rivers, streams, lakes, plains, valleysand swamps.

Preventive measures on deforestation are also recommended since it has exhibited a negative impact onhydrological cycle especially precipitations Article 61of Organic law and environment provides that in theframework of conservation and protection of the environment, decentralised entities are particularly responsible for:

1) ensuring activities related to better management of land, especially controlling soil erosion and tap rain water; 2) aforestation, protection and proper management of forests; 3) efficient management of rivers, lakes, sources of water and underground water; 4) efficient management and effective use of swamps;5) protection and proper managementof reserved areas, historical sites, endangered animal and Plant species.


Rwanda‟s water sector is governed under a complex institutional framework, as shown in the table below. Theinstitutions can be categorised into policy and oversight institutions, management and implementation institutions,service provision institutions and regulatory institutions.

Table 2 Functions and Responsibilities for water Resources Management in Rwanda

No. Institution Function and responsibilities related to WRM

Policy and Oversight Institutions

1Ministry of Natural Resources(MINIRENA)

Formulation of Water resources management policy, strategicplanning, coordination, quality assurance, monitoring, evaluationand capacity building.Put in place legal and regulatory framework.

2Ministry of Local Government(MINALOC)

Establishment, development and facilitation of the management of efficient and effective decentralized government systems capable of law enforcement and delivery of required services to the localcommunities.

3Ministry of Agriculture, AnimalResources (MINAGRI) andaffiliated agencies

Development, planning and coordination of the implementation of agricultural development policy in the country including irrigation,fishery and livestock.

4Ministry of Infrastructure(MININFRA)

Development of institutional and legal frameworks, national policies,strategies and master plans relating to water supply and sanitation,energy and transport subsectors.

5 Ministry of Health (MINISANTE) Policy formulation and promotion of hygiene and public health.

6Ministry of Family and Gender Promotion (MIGEPROF)

Coordination of gender, promotion and mainstreaming and familyplanning activities.

7 Ministry of Education (MINEDUC)Promotion of education including/capacity building and curriculadevelopment relating to water sciences and research on water



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No. Institution Function and responsibilities related to WRM

resources management in schools and other educationalinstitutions.

8Ministry of Commerce (MINICOM)and affiliated agencies

Policy formulation and promotion of investments by the privatesector in water resources management /industries and

manufacturing.

9Ministry of Foreign Affairs AndCooperation (MINAFFET)

Foreign and diplomatic relations including regional and internationalcooperation over shared waters.

Financing Institutions

10Ministry of Finance, Planning andEconomic Development(MINECOFIN)

Mobilization and allocation of financial resources for water resources development.

11 Development partnersProvision and mobilization of financial and technical resources for implementing water resources management and developmentsector activities.

Regulatory Institutions

12Rwanda Environment Management

Authority (REMA)Develop regulations and ensure protection and conservation of theEnvironment and natural resources across the Country.

13Rwanda Utilities Regulatory

Agency (RURA)Enforcement of compliance by public utilities with the lawsgoverning their activities.

14Rwanda Bureau of Standards(RBS)

Provision of standards based solutions for Consumer Protection andTrade promotion for socio-economic growth in a safe and stableenvironment.

15Rwanda Natural Resources

Authority (RNRA) Autonomous agency responsible for management of naturalresources including water resources management and allocation

Management/service Institutions

16Energy ,Water and Sanitation

Authority (EWSA)

Autonomous agency responsible for the delivery of water supplyand sewerage services in the major towns and large urban centresincluding provision of oversight and support services to the localcommunities and other water supply service providers.

17 Rwanda Development Board (RDB) Facilitation of investment and support services to investors.18 User Communities

Management of water resources in the course of their productiveand consumptive activities on a day to day basis

19 Districts Implementation of the government policies and laws

20 Private Sector

Design, construction, operation and maintenance of water resourcesmanagement infrastructure. Conduct training and capacity buildingfor both central and local government staff. Provision of other commercial services.

21Non Governmental Organizations(NGOs)

Supplement the public sector efforts in water resource managementand development.

The institutional framework operates through the sector wide approach, which applies in the planning and budgetingprocess.

Under generally accepted principles of international law, Rwanda, as a riparian country within Nile and Congo River basins has a reciprocal obligation to utilise its shared water resources sustainably and equitably. It therefore has tocooperate with its neighbours in the management of the shared water resources, and avoid actions which candegrade the shared water resources and cause significant harm to other riparian States. Rwanda‟s neighbours mustequally respect and give effect to Rwanda‟s right to utilise the shared water resources for its development needs.The principles of shared water resources management have been taken on board in key regional instruments towhich Rwanda subscribes, including the East African Community Treaty and its Protocol for the SustainableManagement of Lake Victoria and its Basin, 2003, and the evolving Nile Basin Cooperative Framework.



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The Rwanda Natural Resources Authority (RNRA) was created through Law number 53 of 2010 and has the overallmandate of managing natural resources across the other sectors which include land, water, forests and minerals toensure integrated natural resources management and participatory monitoring and evaluation in line withconstitutional natural resources and environment which stipulates that: every citizen is entitled to a healthy andsatisfying environment, has the duty to protect, safeguard and promote the environment, however the state has the

overall mandate of protecting the environment and determines the modalities for the protection and promotion of thesame. It derives from the diverse Environment and Natural Resources Sector and it encompasses other sectors of Environment Lands, Mines, Forestry, health, agriculture, energy, transport, ecotourism, and social development.Environmental issues are provided under the Organic Law N° 04/2005 OF 08/04/2005 this organic law determinesthe Modalities of Protection, Conservation and Promotion of Environment in Rwanda.

3.5 Burundi National Policy and Legal Framework

3.5.1 Water Related Policies

The National Water Policy

According to NBI (2007) Burundi Water Policy was formulated in 2001 and it addresses issues related to sustainabledevelopment of water resources, rural hydropower development, use of water for productive sectors and institutionalframework for water resources management. The policy recognizes the participation of the public sector andmunicipal authorities but it silent on the participation of private sector and other community based organizations.

The Policy which is in the process of formulation will provide the general framework for water resources managementin the country. It covers the aspects of access to domestic water supplies, rural hydropower development, increasingthe use of water to provide for productive sectors, sustainable development of water resources, better mechanismsfor coordination and capacity building. However need of soft tools for enabling better decision making onmanagement of water resources. The issues of proper allocation of water resources to various uses is of great

concern which need immediate attention so as to ensure sustainability of the environment and aquatic ecosystems.The issue of equitable distribution of water resources is also of relevant consideration for enhancing water distribution for both upstream and downstream users.

Due to increasing concerns on climate change, establishment of rain water harvest technologies need also to beintensified. Other issues that need to be taken into consideration in order to attain integrated water resourcesmanagement in Uganda include:

(i) abstraction permits to be issues after the proponent has a produced and EIA report(ii) intensify cleaner to avoid pollution on water bodies(iii) undertake research on water quality and quantity and their uses so as to enhance sustainability of the

resource.

(iv) Research also need to done to foster the scenario of food water print especially nowadays whereproduction of food needs to be increased while water resources to enable such production are limited.

(v) mechanisms for protecting water sources are another area which need great attention so as to avoidwater pollution. Protection of water sources can be achieved through introduction of agro-ecologicalsystems to meet various demands in a harmonized manner, use of terraces to avoid soil erosion

(vi) Enhance management of wetlands decision makers need to be capacitated and understand thatwetlands are not “waste lands” and thus they have various functions such as productive and protectionrelated function

(vii) Aforestation programme need to be intensified to enrich the various watershed area and preference to



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be given to indigenous species.

Environmental protection is accorded due weight by the government and it comprises the following aspects:

(i) upgrading institutional, technical and financial capacities(ii) promoting national resources management and

(iii) promoting the sustainable use of natural resources

The national water master plan which was developed in 1993 stipulates how rational and optimal development andmanagement of water resources in the country can be attained. The master plan outlines the resource base, thestructure of demand sector and assesses demand against supplies.


Water Legislation

The principal legislation related to water regulation and management in Burundi is the order of Council of 1992 on theinstitutions and organization of water in the public domain. However according to NBI (2007) this law is not enforced

and hence Burundi lacks a functional water sector law

Environmental Regulations

Burundi enacted an environmental code in 2000 which sets principles of enhancing natural resources managementand thus regulates the use of natural resources including licensing, water management plans and water qualitystandards. Carrying out environmental impact assessment as a pre-requisite for projects or activities likely to impactthe environment.


The institutional framework for water resources management in Burundi encompasses several institutions as

indicated here under:

The Ministry of Land Management, Environment and Tourism is vested with the overall responsibility of water resources management in the country. There will be Water and Sanitation Director General. Itwas noted during discussion that a good mission and vision relevant to current needs.

Data and information gathering, management and dissemination is the responsibility of theGeographic Institute of Burundi

The Ministry of Mining and Energy is entrusted for water supply and sanitation through the water andelectricity utility for urban areas and water supply and sanitation for rural areas through the GeneralDepartment of Water resources and Rural Energies

Other ministries are also involved in initiating national policies and setting national standards and priorities for water

management

3.6 Summary of Key Issues and Challenges Facing Lake Victoria Basin

The Lake Victoria Basin is endowed with a variety of natural resources which are the main stay of community‟slivelihood. However these resources are currently under increasing pressure and thus their survivals are in jeopardy.Some of the pressures facing the natural resources in the Lake Victoria Basin include over exploitation of resources,losses of habitats and biodiversity, increased water pollution, habitat degradation and climate change.



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In order sustainable water resources management to be attained in the basin; concerted efforts are required toaddress the challenges and major issues of concerns facing the basin. Here under are some of the issues andchallenges which need to be seriously addressed in order to attain the envisaged sustainable water resourcesmanagement in the basin.

(i) Controlling pollution

Pollution is one of the major challenges facing the Lake Victoria Basin. The situation is accelerated by poor farmingpractices which are responsible for soil erosion and thus water pollution and siltation of water bodies. Improvingfarming practices to control pollution. Activities related to cutting of trees and other vegetation covers detract theecological system responsible for filtering mechanisms. When this ecological system is disturbed, the land andenvironment in general is prone to degradation.

Pollution of water bodies is also due to inappropriate use of agrochemicals, discharge of wastes and effluents intowater bodies. Existence of alien invasive species is another factor which lead to pollution of water bodies. Thespecies are responsible of affecting food webs of fish and other aquatic organisms. Controlling the alien invasivespecies is one of the major issue to be addressed.

(ii) Enhancing good governance

Partner countries need to strengthen enforcement of laws and regulations so as to realize the intended objectives.Enhancing good will also strength rule of law and thus corruption and malpractices at all levels of riparian states andlocal governments will be minimized. This will result into adequate transparency and accountability in public decision-making.

(iii) Poverty

Poverty is another challenge facing the residences in the basin. It is estimated that more than half of the lake basinpopulation is living on an income of less than 1 USD per day and relying heavily on subsistence production. Inaddition there is high level of illiteracy and low skills and lack of socio-economic incentives to meet the challenges of water related management and development. Furthermore mortality rates are high due to various diseases such as,tuberculosis and waterborne diseases like malaria, typhoid and bilharzias. It is also apparent that access to healthcare services is inadequate and health facilities are not well equipped.

(iv) Inadequate human and financial capacities

This is also one of the major challenges facing water resource management in the Lake Victoria basin. Although it istrue that always there is resource scarcity, the situation in the basin is more serious since there is acute inadequatecapacity to plan, implement and monitor water resources management and development activities. It is beyondreasonable doubt that investing in the development of human and institutional capacity is very important to enhanceeffective planning, implementation and monitoring of water resources management activities. Equally important to the

aforesaid capacity is to have sustainable mechanism for soliciting financial resources to implement the plannedactivities.

(v) Sustainable allocation of water resources to various water needs

This is another challenges facing management of water resources management in the basin. The major concernissue is how best to allocate water for various economic activities and for sustaining the environment and other aquatic ecosystems.



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(vi) Data and information exchange

Despite the fact the protocol for sustainable development of Lake Victoria Basin, Treaty for establishing East AfricanCommunity and other regional agreement emphasize the need of sharing and exchanging data and information as astrategy for improving planning of water resources management activities, the practice has shown that partner states

are not sharing and exchanging data and information for their partner consumption. This is a major challenge thatneeds to be addressed critically.

(vii) Climate change

Climate change is another of the emerging issue of concern which need great attention in the basin if sustainablemanagement of water resources has to be attained. Climate change has been responsible in food insecurity andother catastrophes in the basin. Currently there are inadequate coping strategies to mitigate the impacts related toclimatic change.

(viii) Security from water-related disaster

Occurrence of water related disasters leaves many people and their properties in situation which takes time torecover. Availability of precautionary measures is very important as a preparedness mechanism to occurrence of water related disasters especially during this era of climatic change catastrophes. However currently there areinadequate mechanisms for protection from flood and drought; prediction, planning and management of naturaldisasters as well as provisions for dam safety management

(ix) Inadequate understanding of the values and functions of the basin ecosystems

Many stakeholders‟ residing in the basin has poor limited understanding on the values and functions of the basinecosystem and this result to poor management of the resources therein. Better understanding of the values andfunctions of the basin ecosystems would enable stakeholders to understand the socio-economic importance of environmental conservation and thus would facilitate to have scientific decision making regarding the use of

environmental resources in the basin

(x) Other issues of concerns

Other issues that posses challenges to the better ways of managing water resources in the Lake Victoria basininclude

Limited capacity to enforce legislations. This is due to the fact that all partner states have inadequatefinancial and resources capacity.

Inadequate and overlaps of sectoral provisions

Inadequacy of legal provisions to address environmental and natural resources management issues

Majority of stakeholders particularly at grassroots have limited awareness of environmental laws

Conflicts in the national policies, laws and regulations in the management of transboundary

ecosystems.

3.7 Comparative analysis of water policies, laws and regulation (SWOC Analysis)

The review indicated that all countries except Burundi to some extend have placed high priority to water resourcemanagement due to the fact water has both social and economic value. National budgets have been set to ensure tosome extent water resources management related activities are planned, implemented and monitored.



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The review further indicated that most of the policies have national focuses and transboundary related managementissues are inadequately addressed. It was further noted that integrated approach as a framework for enhancing water resources management is used in almost all countries. However in Burundi the approach is still new and thus need tobe intensified.

Linkage of the various sectors was noted to be addressed under the environmental management policy which has

integrated other sector policies such as land, agriculture, water, irrigation, gender and trade to mention the few.

It is worth noting that all the partner states under their various respective policies emphasized the need of integratedwater resource management despite the fact that its implementation is taking a low pace so as to realize theenvisaged objectives.

Water allocation and transfers for instance in Uganda are governed by the agreed principles in all countries. Water rights are vested to the government and thus government intends to have equity in water distribution to their people.The first priority is accorded to domestic use. Availability of water for sustainability of the environment is alsoconsidered as a priority in water allocation. All policies clearly indicates that allocation of water for production shouldtake into consideration the socio-economic value of the use and optimal development of the water potential and theassociated impacts on water resources. The policies also recognize that in order to allocate water in response to

emergencies an assessment study be done and develop scenarios that can assist to determine whether allocation totargeted users be adjusted during such period. However constraints are encountered in addressing this and hencesuggest using the market based approach to rectify the situation. All water abstractions and effluent discharges intowater bodies are subject to water use permit or discharge permit. The permits are granted after the relevantauthorities have ascertained the benefits of water use and the proponent has paid the needed fee.

During the review process it was noted that all countries have institutions in place that are responsible for managingwater resources at national and local levels. The following specific institutional arrangements have been identified askey:

Government ministries/agencies/departments are vested with overall coordination, strategy and policyformulation.

All countries have adopted a decentralized system of governance. Kenya uses catchment areas,

Tanzania uses River Basins, Uganda uses district management but is moving towards Zones whichare similar to Tanzania‟a and Kenya‟s systems, Rwanda uses local government authorities butrecognizing IWRM as a guiding framework for managing and developing water resources.

At the community level, all the countries have established water user groups.

3.7.1 SWOT Analysis of the Existing Policy, Legal and Regulations

Strengths

(xii) All countries have water related policies, laws and regulations(xiii) Existence of expertise and knowledge on national and regional programme planning and

implementation(xiv) Existence of national authorities with specific mandates related to water resource management(xv) Experience in transboundary cooperation framework under Nile Basin Initiatives and East Africa

Community through the Lake Victoria Basin Commission(xvi) Existence of sectoral policies with their associated laws and regulations(xvii) Existence of integrated water resource management strategies in partner states(xviii) Existence of participation framework for community and other stakeholders in implementation of water

related management interventions



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(xix) Existence of EAC and NBI legal and institutional framework(xx) Existence of programmes for harvesting, storage and use of rain water as coping strategies to climatic

change(xxi) Existence of water use associations at community level(xxii) Existence of educational and research institutions in the region

Weaknesses

(x) Inadequate funds allocated to water resource management by governments(xi) Inadequate institutional capacities at national, regional/province, district and local levels(xii) Inadequate sharing of important data on management of water resources(xiii) Limited regional focuses on water resource management issues(xiv) Weak enforcement of laws(xv) Transboundary water resources management policy, legal and institutional frameworks not well

elaborated other than for Lake Victoria and Policy statements(xvi) Multiple agencies with no clear framework of operations and thus creates conflicts and coordination

challenges(xvii) Inadequate innovative research activities on integrated water resource management

(xviii) Inadequate advocacy capabilities by civil society organization on water resource management

Opportunities

(vi) Existence of EAC and Lake Victoria basin legal and institutional framework(vii) Existence of interested donors to work in the basin(viii) Interests of the international community in attaining MDGs targets on integrated water resources

management(ix) Potential mutual socio-economic benefits from joint win-win development interventions in the basin(x) Common legal history evidenced in similar laws and the common law background facilitate

harmonization process

Threats/Challenges

(xvi) Adequate prioritization of transboundary water resources management cooperation among ripariancountries

(xvii) Management of alien invasive species in lake Victoria basin and other water bodies(xviii) Controlling of watershed degradation(xix) Development of effective climate change mitigation measures(xx) Accelerated destruction of water resource ecosystems.(xxi) How best to carry out environmental flow assessment(xxii) Delay in finalizing an agreement on the Nile Basin to address transboundary Nile Water resources

policy and institutional framework, holistically, creating risks of desegregated and disjointed actions

(xxiii) Have sustainable funding sources for water resource management activities(xxiv) Strengthen information sharing among partner states(xxv) Strengthening capacity of local community groups so as to bring positive impact on water resource

management(xxvi) Put in place effective mechanism for natural disaster and dam safety management(xxvii) Effective capacity building programme to enhance implementation of water resource management(xxviii) Advocacy on integrated water resource planning to enhance sustainability of water resources(xxix) Enhance proper communication to avoid mistrust among partner state members(xxx) Effective laws and regulations enforcement.



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4. REVIEW OF EXISTING REGINAL AND INTERNATIONAL TREATIES, PROTOCOLS, CONVENTIONSAND AGREEMENTS

4.1 East African Community

4.1.1 The East African Treaty 1999

This is a Treaty for the establishment of the East African Community (EAC). The founder members of the EAC arethe United Republic of Tanzania, Republic of Kenya and Republic of Uganda as provided in Article 3(1) of Treaty.The Republic of Burundi and the Republic of Rwanda became Partner States after acceding to the Treaty pursuantto the provisions of article 3. For purposes of the development of the new policy on the Lake Victoria Water releasecurve this review gives more emphasis to provisions relating to water resources management and development.

4.1.2 Areas of Cooperation

According to the Treaty, the Partner States agreed to cooperate in the following areas:

(i) Trade liberalisation and development(ii) Investment and Industrial development(iii) Standardisation, quality assurance, metrology and testing(iv) Monetary and financial(v) Infrastructure and services(vi) Human resource, science and technology(vii) Free movement of persons, labour and services(viii) Agriculture and food security(ix) Environment and natural resources management

(x) Tourism and wildlife management(xi) Health, social and cultural activities(xii) Enhancing the role of women in socio-economic development(xiii) Political matters(xiv) Legal and judicial affairs(xv) Private sector and civil society

The water resources management and development are covered under the area of environment and naturalresources management.

4.1.3 Objectives and key Principles of the Treaty

The objectives of the EAC are provided under article 5 of the Treaty. One of the objectives is the commitment toensure the promotion of the sustainable utilisation of the natural resources of the Partner States and the taking of measures that would effectively protect the natural environment of the Partner States [art. 5(3)(c)].

In order to achieve the objectives spelled out, the Treaty sets out principles on which the water resources shall bemanaged, utilised and developed. In this regard the key principles as provided in Article 6 are:

(i) Equitable distribution of benefits



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(ii) Co-operation in mutual benefits(iii) Mutual trust, political will and sovereign equality.

These principles are consistent with the principle of pacta sunt servanda provided under the provisions of article 26of the Vienna Convention on the Law of Treaties 1969. Article 26 of the Vienna Convention provides: „„Every treatyin force is binding upon the parties to it and must be performed by them in good faith.‟‟ Therefore, the Partner

States who are parties to the Treaty are bound by the Treaty and therefore shall perform their obligations under theTreaty in good faith. The signal to adhere and the willingness to achieve the objectives of the Treaty is manifestedby already taken steps such as the establishment of the Lake Victoria Basin Commission for the management of Lake Victoria Basin and the decision of the Council of Ministers to formulate a new water release policy for LakeVictoria. Surely and obviously other things being equal, these actions will make the utilisation of the water resources of Lake Victoria to be more equitable and sustainable.

4.1.4 Commitments of the Partner States

Despite the fact that natural resources are vital for economic and socio development, development activities mayaffects them even if not involved directly. The Partner States having recognised that development activities may

have negative impacts on the environment leading to the degradation of the environment and depletion of naturalresources, agreed to take concerted measures to foster co-operation in the joint and efficient management of andsustainable utilisation of natural resources and provide prior and timely notification and relevant information to eachother on natural and human activities that may or are likely to have significant trans-boundary environment impactsand shall consult with each other at an early stage [art. 111(1)(a) and (d)]. Further paragraphs (c) and (d) of sub-article 2 of article 111 provides as follows:

Article 111(2) provides that action by the Community relating to the environment shall have the followingobjectives:

(c) to ensure sustainable utilisation of natural resources like, lakes, wetlands, forests and other aquaticand terrestrial ecosystems; and

(d) to jointly develop and adopt water resources conservation and management policies that ensuressustenance and preservation of ecosystems.

Thus, despite the fact that development activities are very important for economic growth of any country, measuresshould be taken to avoid depletion of the natural resources. It is clear that water resources are capable of beingdiminished therefore they should be utilised in sustainable manner.

Regarding the management of water resources, the Partner States agreed to co-operate through establishment of a body for the management of Lake Victoria as provided in Art. 114(2)(b)(vi) of the Treaty. And according to article151 of the Treaty the Partner States shall conclude such protocols as may be necessary in each area of co-operation to spell out the objectives and scope of and institutional mechanisms for co-operation and integrationhence the adoption of the protocol for the sustainable Development of Lake Victoria Basin.

4.2 Protocol for Sustainable Development of Lake Victoria Basin

4.2.1 Preamble

Kenya, Uganda and Tanzania signed a treaty for the formation of East Africa Community (EAC), in November 1999,and committed itself to a partnership based sustainable development approach that recognizes Lake Victoria as aneconomic growth zone. Rwanda and Burundi later acceded to treaty in 2005. The Lake Victoria Basin Commission(LVBC) was created by the East Africa Community member States as the vehicle through which collaboration in



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sustainable development shall be pursued. The LVBC is governed by a protocol of 2003 entered between theparticipating states and is charged with the responsibility of overseeing socio-economic and livelihood improvementof the peoples of East African through coordinating all forms of development in the riparian States. This outfit isbased in Kisumu, Kenya and has an Executive Secretary as its Chief Executive. The Protocol provides for sustainable development of the Lake Victoria Basin and LVBC was formed to ensure exactly that. Riparian States areexpected to cooperate in order to promote peace and stability and that there is equitable sharing of the benefits from

the shared resources within the basin.

As a nation, Kenya‟s development dream is to spur wealth generation through empowering the populace, particularlyin the agricultural sector. The Lake Victoria basin supports about 50% of Kenya‟s population and has over 50% of thecountry‟s water resources endowment, thus is a very critical area in Kenya‟s economy. It is against this backgroundthat a comprehensive inventory is necessary so as to determine each Country‟s contribution to the L. Victoria sharedbasin and consequently determine equitable and reasonable benefit from this common resource.

In adopting the protocol the Partner States (thereafter the parties) have regonised the following:

(i) The need for increased investment in the field of energy, transport, communication, infrastructure,tourism, agriculture, fisheries, livestock, forestry, mining and other areas of social and economic

Endeavour to spur development and to eradicate poverty in the in the Lake Victoria Basin. There istherefore need to have a release policy that encourages such developments. The current policy hasresulted into the receding of the lake levels to the extent that affect, marine transport, fishing, tourismand water intakes for socio-economic development among others hence the need to review the existingrelease policy.

(ii) That development activity may lead to degradation of the environment hence the need to have arelease policy that will avoid depletion of the natural resources and promote clean and healthyenvironment which is a prerequisite for sustainable development. The current release curve does notallow flood water harvesting in the lake during the high rainfall seasons and hence result into thedepletion of the lake water resources during the low rainfall seasons. Therefore, there is need to have arelease policy that would take advantage of the high rainfall seasons, release only the amount that is

required as compensation flows and store the excess waters in the lake to be released during the lowrainfall seasons in order to avoid the receding of the lake levels during the low rainfall seasons. Thisstorage is possible within the two metre fluctuations levels of 1134.5 m to 1136.5 m.

(iii) That water is a finite and vulnerable resource essential to sustain life, development and theenvironment and must be managed in an integrated and holistic manner, linking social and economicdevelopment with protection and conservation of natural ecosystems.

(iv) That water is an economic good having social and economic value, whose utilization should givepriority to it most economic use taking cognizance of basic human needs and the safeguarding of ecosystem. The current release policy therefore does not support this recognition as it allows excesswater during the high rainfall seasons to go to waste as of the over 1000 cubic metres per second

released at owen falls a good amount of this flow is lost in the Sudd swamp and ends up as wastage.

(v) The treaty therefore obliges the parties to cooperate in relation to Lake Victoria Water Basin in acoordinated and sustainable manner and that the parties have agreed to negotiate as a block on issuesrelating to the basin. This therefore does not encourage or allow bilateral agreement between onepartner State and another State as in the case of the 1991 exchange of notes between Uganda andEgypt that becomes parties to agreements that affect the other partner States.

(vi) Further the partner States have designated Lake Victoria as an economic growth zone.



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4.2.2 The parties to the Protocol

The parties to the protocol for sustainable development of Lake Victoria basin are the Partner States of the East Africa Community namely Kenya, Uganda and Tanzania, Rwanda and Burundi. The five States enjoys close

historical, commercial, industrial cultural and other ties. These collaboration and ties made the States to sign a treatyfor the establishment of the east Africa community on 30 th November, 1999. Rwanda and Burundi have acceded tothe treaty and to the protocol as their territories fall within the Lake Victoria Basin and now the Executive Secretary of LVBC is from Rwanda.

4.2.3 The Scope of the protocol

The partner States have agreed to cooperate in areas as they relate to the conservation and sustainable utilization of the resources of the basin including the following:

(i) Sustainable development, management and equitable utilization of the water resources(ii) Management of the basin and fisheries resources(iii) Promotion of sustainable agricultural land use practices including irrigation(iv) Maintenance of navigation safety and maritime security.(v) Improvement of public health with specific reference to sanitation(vi) Promotion of research, capacity building, information exchange, public participation in planning and

decision making, wildlife conservation and sustainable tourism development.

4.2.4 Principles

Article 4 of the protocol provides principle on which the water resources shall be managed in accordance with theprinciples set out in Articles 5,6,7 and 8 in the EAC treaty.

The key principles of which the water resources shall be managed are:

(i) Equitable and reasonable utilization of the water resources(ii) Prevention of causing significant harm to other partner States in line with precautionary principle.(iii) Sustainable development(iv) Providing information on planned measures that may have adverse effects upon other States(v) Polluter pays principle whereby the person that causes pollution shall bear the cost associated with it.(vi) The principle of community interest in the shared water resources(vii) The principle that water is asocial and economic good and finite resource(viii) The principle of subsidiarity

4.2.5 Rights and Obligations

Article 5 gives the Partner States the right to use the water resources within their territories in and equitable andreasonable manner. The protocol further gives each partner States their equitable and reasonable entitlement sharein the beneficial use of the water resources of the basin.

To ensure equitable and reasonable use of the water resources of the basin, the protocol sets out factors to be



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considered. Such factors do not limit the use of the water resources within the basin as in the case of other agreements governing the use of the shared water resources.

Article 6 gives the Partner States a duty to protect, and conserve and where necessary rehabilitate the basin and itsecosystems.

Article 13 gives the Partner States further specific duties to notify other partner States on the any planned measures

which may adverse effect to other States and consult with the other partner states where necessary and take care of the interest of other partner states. One should not that in the protocol the wordings prior notification has been usedas opposed to those used in the Draft Nile River Basin Cooperative Framework where the wordings information onplanned measures has been used. The difference is that prior notification as used in the international law carriesconsent and veto to some extent while information on planned measures does not necessarily call for the other parties‟ consent but only as a means to take care of the their concern with regards to planned measures. One wouldtherefore be only comfortable to use words prior notification when dealing with parties whom they have longer friendly ties with like the EAC Partner States and not to accept to be bound by such words while at sea.

Articles 16 and 25 give each Partner States an obligation to monitor activities and natural phenomena, water qualityand quantity within their area of jurisdiction in order to determine the risk they pose to the resources of the basin andits people. Where there is a threat, the Partner States shall undertake such precautionary, pre-emptive and remedial

measures as may be necessary in the circumstances. In addition the Partner States shall adopt standardizedequipment and methods for monitoring water quality, quantity and natural phenomena.

Article 16 therefore gives the EAC Partner States through Lake Victoria basin Commission to review the policy of thecurrent release curve that today is contributing the receding of the lake levels.

Article 24 gives the Partner States an obligation to exchange readily data available and relevant data and informationon a regular basis on existing measures and on the condition of the natural resources of the basin in a useableformat.

4.2.6 Review on mainstreaming of protocol for sustainable development of lake Victoria Basin into Water

related Policies, Laws and Regulations

The EAC partner states developed a protocol for sustainable development of Lake Victoria Basin. This Protocolgoverns the cooperation of partner states in sustainable development of Lake Victoria Basin. The protocol outlinesfourteen areas relating to the conservation and sustainable utilization of the resources of the Basin. Among the areasagreed for include sustainable development, management and equitable utilization of water resources; sustainabledevelopment and management of fisheries resources, promotion of sustainable agricultural and land use practices;promotion of development and management of wetlands.

In addition in 2006 the Partner States signed a shared vision and strategy framework for Lake Victoria Basincommonly known as the East African Community Popular Version for Lake Victoria. The common direction under theshared vision is set along fiver main pillars referred as policy areas which have clear strategies and indicators of

achievements. The five policy area are Ecosystems, natural resources and environment; production and incomegeneration; living conditions and qualify of life; population and demography; and governance, institutions andpolicies. This protocol was formulated after realization of the threats and challenges facing the Lake Victoria Basin.The major threats and challenges observed to be critical to the Basin include over abstraction; destruction of filteringmechanism; discharge of agrochemicals, wastes and refuse to water bodies; decreasing of fish biodiversity andaltered food webs; high population density; encroachment on wildlife; gender inequality and conflicts on the use of Basin resources

The shared vision statement under policy area one which is on Ecosystems, natural resources and environment is “A



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prosperous livelihood and enhanced management of ecosystems, natural resources [and] a clean and healthy environment” The success of achieving the stakeholders aspirations under this policy area is hinged on theharmonization, coordination and enforcement of policies and legislative frameworks to support the conservation andmanagement of the ecosystems, natural resources and environment and encouraging collaboration with andpromotion of participation and investment by the public, CSOs and private sectors. This implies that all partner statesare required to strive to have sustainable utilization of ecosystems, natural resources and environment as well as to

foster collaboration with and participation of various stakeholders. Harmonization of Policies, laws and regulations isa requisite to attain this policy area.

The policy review indicated that the agreed issues for cooperation under the protocol to a large extent weremainstreamed into various national policies of the partner states (see annex……on mainstreaming matrix of theprotocol). For instance sustainable development, management and equitable utilization of water resources is wellelaborated by the National Water Policies for Tanzania, Uganda and Rwanda. Promotion of research, capacitybuilding and information exchange is also narrated in various national policies. However although it is stipulated thatpartner states to exchange information to enhance sustainable utilization of the resources, there was all signs of lackof cooperation on this issue probably due to lack of properly set mechanisms to effect it. Application of polluter paysprinciple was also noted to lack effective mechanisms to enforce it. However efforts that have been done by thepartner states to mainstream the protocol into national policies is recognized and commended as a achievements

towards having sustainable development in the Lake Victoria Basin. It is however important to strategize to enhancemore effective mainstreaming and to actually implement what have been agreed for the sustainability of theresources in the Basin.

4.3 Treaties and Conventions

4.3.1 The Position of the Partner States in regards to the Existing Colonial Agreements

First, one would like to know what a treaty is. Article 2 (1)(a) of the Law of Treaties14 defines a “treaty” as

“an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”

Though there are several legal instruments on the Nile River, only key agreements touching on Kenya analysed inorder to determine the implications the modifications of the current release curve would have on such treaties.

Exchange of notes between Her Majesty‟s Government in the United Kingdom and the Egyptian Government on theuse of waters of the Nile for irrigation” dated at Cairo on 7 May 1929.

The exchanges of Notes are on two legal instruments as follows:

No I: Mohamed Mahmoud Pacha to lord Lloyd, Office of the Council of the Ministers; (dated Cairo, 7 May 1929)

No 2: Lord Lloyd to Mahmoud Pacha (dated The Residence Cairo, 7 May 1929)

From the definition above it is clear that the exchange of notes on 7 May 1929 between Her Majesty‟s Government inthe United Kingdom and the Egyptian Government on the use of waters of the Nile for irrigation” is embodied in two

14 Vienna Convention on the Law of Treaties, May 23, 1969, 115 UNTS 331, reprinted in 8 ILM 679 (1969) (entered into force 27 Jan. 1980)[hereinafter, Vienna Convention].



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related instruments that are literary referred to as the 1929 Nile Waters Agreement or the 1929 Nile Waters Agreements.

In international law one would expect a Treaty or Agreement in force to have been negotiated, signed and ratified or acceded to by parties. One would therefore, not be seen to be at fault to refer the 1929 Nile waters agreement asonly exchange of notes between the United Kingdom and the Government of Egypt. It is true that legal instruments

referred above were exchange of notes. A similar scenario is the exchange of notes in 1993 between Ethiopia andEgypt as listed on FAO website as the 1993 agreement between Ethiopia and Egypt. Today both the Egypt andEthiopia would never like such exchange of notes to be referred to as a Treaty or Agreement but by the abovedefinition deposition of such legal instruments automatically qualifies to be referred to as a Treaty or Agreement.

Second, one would like to know what the 1929 Nile waters treaty provides in a nutshell.

The key provision of Mahmoud Pasha‟s note that forms part of the 1929 Agreement and is highly contested by theupper riparian States is paragraph 4(b) of 7th May 1929 that states:

“Except with the prior consent of the Egyptian Government, no irrigation or power works or measures are to beconstructed or taken on the River Nile or its branches, or on the lakes from which it flows so far as all these are in theSudan or in countries under British administration, which would in such a manner as to entail prejudice to the interest

of Egypt, either reduce the quantities of water arriving in Egypt, or modify the date of its arrival, or lower its level”.

In plain language this provision denied the use of the Nile waters by Sudan and any other riparian States, which wereunder the British administration by 1929 apart from Egypt. If the agreement was to be considered in force then onewould argue that Kenya, Uganda and Tanzanian are free to use the waters from the rivers feedings the Lake Victoriaas the rivers are not branches of the Nile River as the 1929 had fixed the lakes as the source of the Nile and itsbranches. This argument also conforms with the 1997 UN Watercourses Convention that restricts the convention towatercourses and not to wider basin.

The other provision that restricted other riparian States from the use of the Nile waters is that of paragraph 4(d) of thesame Mahmoud Pasha‟s note that reads:

“In addition any works so constructed were to be administered under the direct control of the Egyptian Governmentand before undertaking such works, that Government was to agree with local authorities on the measures to be takenfor safeguarding local interests”.

The main reason given by Egypt as per paragraph 2 of Mahmoud Pasha‟s Note is to safe guard Egypt‟s “natural andhistoric rights” in the waters of the Nile and its requirements of agricultural extension.

The 1959 Nile Agreement for full utilization of the Nile waters was explicitly bilateral to Egypt and Sudan.Consequently, in line with the general rule of international Law, such a treaty creates neither rights nor obligation for third States (i.e. States which are not parties to the treaty). This is straight and clear and therefore have no obligationon Kenya, Uganda and Tanzania.

Third, one is whether the 1929 Nile waters agreement is binding. Under the 1929 agreement the key provisions that

requires Kenya, Uganda and Tanzania and even Sudan to use the waters of Lake Victoria and the Nile with theacquiesce of Egypt are stated above.

Upon its independence, Tanzania formally invoked the Nyerere Doctrine. In a formal declaration to the Secretary-General of the United Nations, the Tanzanian government accepted with stipulations all bilateral treaties, which weresigned by UK had signed on her behalf. Such treaties would remain in force on the basis of reciprocity for two yearsfrom 1960 unless abrogated or modified earlier by mutual consent. Tanzania also issued identical notes to Britain,Egypt and Sudan outlining her policy on the utilization of the Nile waters. Tanzania‟s g overnment asserted that theNile Agreement was not binding but agreed to negotiate with all riparian states to formulate a new framework based



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on just and equitable principles. Following their independence, Uganda and Kenya, respectively, adopted theTanzanian approach but they did not specifically challenge the devolution of the Nile Agreement.

Kenya‟s position vis-avis the status of Nile treaties has been clear and equivocal. On attaining independence, Kenyaadopted the Nyerere Doctrine and declared her intention not to be bound by the Nile treaties entered into on her behalf by the United Kingdom.

The declaration were made by then Prime Minister of Kenya and communicated to the Secretary General of the UNon 25th March 1964. It was on the succession of treaties extended or applied to Kenya by the Government of theUnited Kingdom prior to independence. The Declaration gave a grace period of two years within which to re-negotiatethe treaties.

At the expiry of the aforementioned period of two years the Government of Kenya will consider these treaties, whichcannot be regarded as surviving according to the rules of customary international law as having terminated. Theperiod of the two years is intended to facilitate diplomatic negotiations to enable the interested parties to reachsatisfactory accord on the possibility of the continuance or notification or termini nation of the treaties”.

On 12th December 1965, the government extended the period of Declaration for two years up to 12th December 1967.

It is notable that within the four-year grace period given by the Government there were no diplomatic negotiations ascontemplated by declaration. It is therefore, rightly presumed that the validity if any of such treaties lapsed upon theexpiry of the period ending on 12th December 1967. The government has since firmly maintained her position of non-recognition of the Nile treaties.

In 1929 Tanzania (then Tanganyika) was under the British administration therefore this agreement was effective andbinding. Similarly the other two East African Countries Kenya and Uganda were under the British administration.

The subsequent Nile waters agreements had never altered the provisions of the 1929 agreement.

4.3.2 The 1929 Nile Water Agreement

In 1991, the Ugandan Government entered into another agreement with Egypt accepting all the existing treaties andthe agreed curve thereby repudiating its own long-standing policy of 1963 of denying the validity of the agreement.This agreement/treaty has never been ratified in accordance with the Uganda National Laws as the Constitution of the Republic of Uganda provides that international agreements shall be effective upon ratification therefore. The1945 UN Charter analysed above provides for exploitation of the international water resources with duty not to causesignificant harm to other riparian States. Efforts to modify the current agreed curve will be in line with UN Charter and the protocol for the sustainable development of the Lake Victoria Basin and the Draft Nile River BasinCooperative Framework.

4.3.3 The Agreement between the United Kingdom and Belgium regarding water rights on the Boundarybetween Tanganyika and Ruanda-Urundi, 1934

In this agreement the United Kingdom acted on behalf of Tanganyika and the Belgium on behalf of Ruanda – Urundi. Article 1 of the agreement provided that:

„„Water diverted from part of a river or stream wholly within the Tanganyika Territory or Ruanda-Urundi shall be returned without substantial reduction to its natural bed at some point before such river or stream



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flows into the other territory, or at some point before such river or stream forms the common boundary between the two territory‟‟

Further article 2 of the agreement prohibited the operations of mining or industrial nature which may in any waylessen or otherwise interfere with existing navigable waters in any other river or stream.

It is obvious that the two agreements and others agreements concluded prior to 1961 on behalf of Tanzania wereapplied during the period of pre-independence. Upon attaining her independence Tanzania expressed her consent or otherwise in relation to treaties applied by the colonial government.

The effects of the Nyerere doctrine in relation to pre-independence treaties was that unless such treaties wereabrogated or modified by mutual consent they will cease to apply after the two year period from Independence Day.

Despite that fact on 4 July 1962 the Tanganyika Government addressed identical Notes to the governments of UnitedKingdom, the United Arab Republic of Sudan, Kenya and Uganda outlining its policy on the use of the waters of theRiver Nile as follows:

The Government of Tanganyika, conscious of the vital importance of the waters of Lake Victoria and its

catchment area to the future needs and interests of the people of Tanganyika, has given the most seriousconsideration to the situation that arises from the emergence of Tanganyika as an independent sovereignState in relation to the provisions of the Nile Waters Agreement on the use of the waters of the entered into 1929 by means of an exchange of Notes between the Governments of Egypt and the of the United Kingdom.

As a result of such consideration the Government of Tanganyika has come to the conclusion that the provisions of the 1929 Agreement purporting to apply to countries „under British Administration‟ are not binding on Tanganyika. At the same time, however, and recognising the importance of the waters of theNile that have their source in Lake Victoria to the Government and peoples of all the riparian States, theGovernment of Tanganyika is willing to enter into discussion with other interested Governments at theappropriate time, with a view to formulating and agreeing on measures for the regulation and division of

the waters in a manner that is just and equitable to all the riparian States and of the greatest benefit to all their peoples.

In the mean time the Government of Tanganyika for its part attaches considerable importance to acontinuation of the present arrangements whereby technical experts from the United Arab Republic, theSudan and the three East African countries of Tanganyika, Kenya, and Uganda meet at intervals todiscuss common technical problems connected with the use of the waters of the Nile.[Quoted at pp. 90-91: Tanzania Treaty Practice by E. E. Seaton and S. T. Maliti , 1973]

4.3.4 The 1929 Nile Water agreement between Egypt and Sudan

This was essentially a result of the British- instituted Nile commission to appropriate water between Egypt and theemerging needs of the Sudan.

While most of the provisions related to Egypt and Sudan relations, clause 4 of both the British and Egyptian Notesobliged Britain not to develop any hydraulic works without the consent of Egypt. The Note provided that “Save withthe previous agreement of the Egyptian Government, no irrigation or power works or measures to be constructed or taken on the River Nile and its branches or on the lake from which it flows, so far as these are in the Sudan or incountries under British Administration which would, in such a manner as to entail any prejudice to the interest of Egypt or modify the date of its arrival or lower its level.”



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By then, the British accepted the Egyptian Note without any reservation. It has been contended that because thisagreement gave the British an obligation covering all their Nile Basin territories, this Note bound Uganda too since itwas under the British administration, and after independence due to the operation of the principle of statesuccession.

4.3.5 The 1949 and 1953 Agreements relating to the construction of the Owen Falls dam

These agreements provided for the building of the Owen Falls Dam and the contributions between the partiesincluding the participation of Egypt. The agreement made a provision for the establishment of a permanent mission of Egypt in Uganda led by a Resident Engineer to monitor the amount of water released to Egypt. The agreed curvebetween Egypt and Uganda was the adopted following the 1949 Owen Falls Agreements. This agreed curve is beingobserved to today.

The attempts to repudiate the agreements after independence were made by the independent government of Uganda.

A letter of the Prime Minister of Uganda dated 12. 2. 1963 to the Secretary General of the United Nation stated asfollows:

“In respect of all treaties validly concluded by the United Kingdom on behalf of the Uganda Protectorate, or validly applied or extended by the Government of the later, before October 9, the Government of Uganda will continue onthe basis of reciprocity to apply the terms of such treaties from the time of independence, until December 31, 1963.

At the expiry of this period, or of any subsequent extension of the period which may be notified in the like manner, theGovernment of Uganda will regard such treaties, unless they must by the application of rules of customary international law be regarded as otherwise surviving, as being terminated.”

The 1929 agreement does not create a permanent regime to create rights in them. The Owen Falls Dam agreements

also fall short of the requirement for the continued validity. Circumstances have changed and the treaty regimecannot persist forever.

Finally, the effective management of Lake Victoria Basin and the Nile River Basin and its resources will depend onclose collaboration and mutual trust among the riparian States that will stem from and bonded with agreed actionssuch the new Lake Victoria release curve, the implementation of the Protocol for the sustainable development of Lake Victoria and the Nile Basin Cooperative Agreement that takes into consideration all the problems facing thebasin today such as the receding of the lake level existing bilateral agreements on a multilateral basin, the potentialuse of Nile basin waters outside the Nile Basin. Lack of mutual trust, achieving one vision as opposed to severalvisions on one resource, and accepting water resources as a social and economic good and being party to basinagreement that is negotiated, signed and ratified or acceded to by the Lake Victoria Basin States and the Nile Basinriparian States that are further entrenched into their national water policies and laws facilitated by the Lake Victoria

Basin Commission and the proposed Nile River Basin Commission.

4.3.6 The Vienna Convention on the Law of Treaties 1969.

Article 11 provides to the effect that the consent of a State to be bound by a treaty may be expressed by signature,exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any means if soagreed. Also article 62 which provides for fundamental change of circumstances as a ground for terminating or withdraws from treaty, sub-article 3 provides that:



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“If under the foregoing paragraphs, a party may invoke a fundamental change of cir cumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty”.

It has been accepted that Tanzania rejected the application of the 1929 agreement and similar agreements to its

territory on the vital change in the political and economic circumstances. For these reason it is evident thatTanzania cleared her house from being bound by treaties that had not consented to. Therefore the move towardsadopting the new Water Release Policy from Lake Victoria will have no legal implication whatsoever emanatingfrom the deemed existing treaties.

4.2.7 The 1993 Agreement between Ethiopia and Egypt.

The 1993 Agreement between Ethiopia and Egypt included a clause by which the two States agreed not to undertakeany activity relating to the Nile that would harm the other, and to consult and cooperate on mutually beneficialprojects on the basis of the principle of international law. Though this agreement offers very little in solving futureconflicts over the use of the Nile waters between the two States it points out to two important issues:

If the promise not to inflict harm is considered as a guiding principle then the agreement only benefitsEgypt, as Egypt activities on the Nile cannot inflict harm on Ethiopia.

If the Agreement is interpreted to mean that the consultation and cooperation on the basis of theprinciples of international law must be taken seriously, then Ethiopia has gained Egyptian consent tothe rule of equitable allocation of the Nile waters that will supersede the priority to existing uses.

4.2.7 The Signed Nile River Basin Cooperation Framework

Background

The ongoing Nile River Basin negotiations started in 1997 to come up with a new Nile River Basin Agreement in the

name “The Nile River Basin Cooperative Framework Agreement (CFA)”.

“The present Framework applies to the use, development, protection, conservation and management of the NileRiver Basin and its resources and establishes an institutional mechanism for cooperation among the Nile BasinStates”

The Importance of the Nile River Basin States

First, if the Draft Negotiated CFA is signed and enters into force it will provide an Agreement that guarantees therights of all the Nile River Basin states to utilise the basin‟s water resources within their territory in an equitable andreasonable manner as provided in Article 4 of the draft CFA. This right is balanced with the obligation under article5 of the same draft CFA that restores upon the states the duty not to cause significant harm to other riparian states.

Articles 4 and 5 therefore, provides for the required water security for the basin states. Consequently, the Nile BasinStates should rest assured that with this Cooperative Framework coming into force, no state shall cause harm toanother state in the utilisation of the water resources of the Nile River.

Second, to effectively develop and use the shared water resources of the Nile River Basin there is need to have alevel playing field that allows mobilization of the required resources for such development. Under the existing legalarrangements, there is no Nile River Basin Agreement that is acceptable to the Nile Basin States except for Egyptand Sudan. This is because the existing agreements were negotiated before most Nile Basin Riparian States were



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independent, and are considered lop-sided as they give veto powers Egypt and Sudan over the others.Consequently, they do not provide the required room for resource mobilization and cooperation among the States for equitable and reasonable utilization of the Nile River water resources. It is against this background that the NileRiver Basin states agreed to negotiate and come up with an Agreement that is freely negotiated and provides for equitable use of the Nile River Basin water resources among the Basin countries.

Outstanding Issues

The Negotiation Committee has discussed and negotiated all the 45 articles presented in the Draft Nile River BasinCooperative Framework by the Technical Experts that started assembling the Draft Cooperative Framework in 1997and reached consensus in all the 38 articles. Only a small part of Article 14 (b) on water security to replace the Articleon existing agreements remains unresolved.

Article 14 states that:

“Having due regard for the provisions of Articles 4 and 5, Nile Basin States recognize the vital importance of water security to each of them. The States also recognize that cooperative management and development of the waters of the Nile River system will facilitate achievement of water security and benefits. Nile Basin Statestherefore agree, in a spirit of cooperation”,

(a) to work together to ensure that all States achieve and sustain water security.(b) not to significantly affect the water security of any other Nile Basin State

In effect, all the States except Egypt and Sudan agreed to this provision. Egypt and Sudan, however, wantpart (b) to be replaced with the following phrase:

“Not to adversely affect the water security and current uses and rights of any other Nile Basin States”

The position taken by Egypt and Sudan is not acceptable to the seven other Basin States as it is seen to entrenchrights which were provided for in the existing agreements. Other riparian States are not party to the existing

Agreement that guarantees existing uses which are inequitable and unreasonable.

The current uses and rights that Egypt and Sudan are advancing are provided for in the 1929 and 1959 Agreements.In 1929, the Agreement was between United Kingdom and Egypt while in 1959 it was between Egypt and Sudan.The 1959 Agreement, also known as the Agreement for the Exclusive Use of the Nile River water resources, whereEgypt and Sudan allocated themselves almost the entire water resources of the Nile River with Egypt taking 55.5billion cubic metres and Sudan 18.5 billion cubic metres equal to 74 billion cubic metres to the two countries alone.This is 87% of the Nile River water resources which only leaves 13% of the river flow; the 13% forms the water reserve that is meant for environmental concerns and river maintenance.

Nile Basin Initiative (NBI)

The current Nile Basin Initiative was established in 1999 by the Nile Council of Ministers (Nile-COM) in charge of water Affairs that is headquartered in Entebbe, Uganda. The Main objective of the NBI was to bring the Nile Basincountries together in order to negotiate a new Nile River basin Cooperative Framework acceptable to all the riparianstates. To this end, the Nile Basin states have negotiated the CFA that is now ready for signing. In addition to thenegotiation of the CFA, other small tangible projects such as capacity building, water-saving irrigation, anddevelopment of water resources policies among other things have been undertaken.

The Negotiations and the Final Position of the Riparian States



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From 2006-2007, the Nile-COM held discussions on the draft Cooperative Framework Agreement that was presentedto them by the negotiation committee and greatly reduced the number of pending issues. In May 2007, Nile-COMconcluded political discussions and agreed on all articles of the draft framework agreement, except one Article 14b on water security.

In the Nile COM meeting in Kinshasa, Democratic Republic of Congo in July 2008, the Council of Ministers mandated

the incoming Chairperson of the Council of Ministers (Ministers for Waters Affairs Democratic Republic of Congo) toexplore new avenues that would lead to the speedy conclusion of the Framework. Based on this mandate, theChairperson visited all the cooperating countries under NBI. The findings of his visits culminated in an extra ordinarymeeting of the Council of Ministers held in Kinshasa, Democratic Republic of Congo in May 2009 where the NileCouncil of Ministers, with the exception of Egypt, agreed and resolved that a Nile Basin Commission be set up andthe unresolved article 14b be annexed and later be considered by an international audit committee that willfine tune article 14b. Annexing Article 14b makes the draft Cooperative Framework Agreement a clean text readyfor presentation to the riparian states for signature and ratification to enable the establishment of the permanent NileRiver Basin Commission.

Egypt registered its reservations to this adoption. Egypt‟s position remained that, Article 14b which relates tohistorical water rights and uses should be formulated with a Committee of Ministers from the Eastern Nile, the

Equatorial Lakes region, Egypt and Sudan and one or two experts from international organizations to formulate anacceptable text within six months and present it to the Nile-COM members.

The Seven NBI states, however, stayed their adoption by annexing Article 14b in the CFA text and recommendedthat the cleaned CFA text be presented to countries for signature and ratification to pave way for the establishment of a River Basin Commission. Within six months of its establishment, the Nile River Basin Commission shall institute aCommittee to resolve Article 14b.

The move by the seven NBI countries is a step towards establishing a Nile River Basin Commission that will becomebinding on the countries when the CFA document is signed, ratified in their Parliaments and deposited at the AfricaUnion (AU) headquarters in Addis Ababa by at least six of the Cooperating Basin Countries. Once this conditionis met, a Nile River Basin Commission shall be established that shall assume all the functions currently undertaken

by the NBI Secretariat.

4.3 Transboundary Water Resources Management

4.3.1 Introduction

Africa has a number of transboundary water resources that are shared and utilized by two or more States. In additionto the Nile Basin there exist other international water basins thus includes, the Lake Chad Basin, the Niger River Basin, the Senegal River Basin, the Kagera River Basin, the Gambia River Basin, the Zambezi River Basin, theOkavango River Basin, the Lake Malawi Basin, the Lake Tanganyika Basin, and the Komati River Basin among

others. In an attempt to utilize and manage these shared resources in a sustainable manner as most of the existingwater Agreements in Africa indicates, the African States have negotiated over fifty agreements that touch on theutilization of these international water resources. Some of these international water resources have two to threeagreement negotiated by riparian States. The Nile basin itself has three bilateral agreements on a multilateral basinof ten riparian States. Such Agreements is the 1929 between Egypt and the United Kingdom on behalf of theupstream riparian territories thus includes Sudan, Uganda, Kenya, and Tanzania, the 1959 Agreements betweenEgypt and Sudan, and the 1993 Agreement between Egypt and Ethiopia.



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These shared water resources have been used for navigation, irrigation, fishing activities, power generation, and ingeneral as a resource for fresh water to the African States. In the course of the development and utilization of thesewater resources there has been stiff competition among States and even within States themselves as the water resources become scarce and degraded.

The sustainable management of “trans-boundary” river systems shared by more than one country relies on thecollective goodwill and collaborative efforts of all the basin states involved (Wolf, 1999; Lundqvist, 2000; Ashton,2002).

The provisions of national and international water law, as well as any international or regional watercoursemanagement treaties and protocols ratified by the basin states, help to guide the activities of individual countriessharing a river basin (Wouters, 1999).

Legal Framework

Rights and Obligations of States under International Water Law

International law is the body of rules, which are legally binding on states in their intercourse with each other 15. Theseare the rules that primarily governed the relations of states, though states are not the only subjects of internationallaw as International organizations and, to some extent, individuals may be subjects of rights conferred and dutiesimposed by international law. States should also distinguish between those rules of international law, which, eventhough they may be of universal application, do not in any particular situation give rise to rights and obligations ergaomnes, and those, which do. Rights and obligations erga omnes may even be created by the actions of a limitednumber of states.16

States may, by and within the limits of agreement between themselves, vary or even dispense altogether with mostrules of international law. There are however a few rules from which no derogation is possible as in the rules of juscogens or peremptory17 norms of general international law as defined in Article 53 of the Vienna Convention on theLaw of Treaties 1969.

Sources of Rights and Obligations

The concept of a "source" of a rule of law is important, since it enables rules of law to be identified and distinguishedfrom other rules (in particular from rules de lege ferenda) and concerns the way in which the legal force of new rulesof conduct is established and in which existing rules are changed.

Importantly, international water law lacks the compulsory jurisdiction and enforcement that characterize domestic legal systems. Rather, it relies on its acceptance by the affected states and the opinion of the wider world community.

15 Jennings R., and Watts A., (eds.), Oppenheim‟s International law, (9th ed, 2000, London, Longmans)

16 Reparations for Injures Case, ICJ rep (1949), p185, Namibia Case, ICJ Rep. (1971), P56, as to the extent to which states may by treaty(such as the UN Charter) give rise to obligations applicable also to third states.17 A peremptory norm of general international law is defined as “a norm accepted and recognized by the international community o f states as awhole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international lawhaving the same character.



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Though it is the practice of States that demonstrates which sources are acknowledged as giving rise to rules havingthe force of law.18 It is important to consult Articles 38 of the Statute of the International Court of Justice that isgenerally regarded as a complete statement of the sources of international law19.

The pertinent provisions of The Statute of the International Court of Justice are as follows:

Article 38. 1. The Court, whose function is to decide in accordance with international law, such disputes as aresubmitted to it, shall apply:

international conventions, whether general or particular, establishing rules expressly recognized bythe contesting States;

international custom, as evidence of a general practice accepted as law;

the general principles of law recognized by civilized nations ;

subject to the provisions of Article 59, judicial decisions and the teachings of the most highlyqualified publicists of the various nations, as subsidiary means for the determination of rules of law.

This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree

thereto.

Article 59. The decision of the Court has no binding force except between the parties and in respect of that particular case.

4.3.2 Treaty Law

From the historical point of view, treaties are the second source of international law after they developed as themeans whereby states could give to rules for their mutual conduct a greater particularity than was provided bycustom. From the foregoing, treaties have to be interpreted and applied against the background of customaryinternational law.

Of a particular importance is the Charter of the United Nations, which, in addition to being a treaty embodying the

constitution of that organization, has become the basic legal instrument for the international community. In case of conflict between a state‟s obligations under the Charter and its obligations under any other international agreement,the former prevails.

Article 2 (1)(a) of the Law of Treaties20 defines a “treaty” as

“an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”

From the above definition it is clear that there are many designations used other than “treaty” to refer to an

18 This is often obscured by the fact that custom and treaties, which are sources depend on at least the general consent of states, are theprinciples and regular sources of international law, and that as the international community is at present organized, the will of states normallypredominates in the creation of rules of international law. Nevertheless, the will of individual states does not play an unrestricted role.

19 Art. 38 have often been incorporated textually or by reference in the compromis of other tribunals: Simpson and Fox, International Arbitration(1959), 130 n.

20 Vienna Convention on the Law of Treaties, May 23, 1969, 115 UNTS 331, reprinted in 8 ILM 679 (1969) (entered into force 27 Jan. 1980)[hereinafter, Vienna Convention].



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international agreement.

Such designations are:

“ Convention”, “protocol”, “declaration”, “charter”, “Covenant”, “agreement”, “concordat”, “statue”, “act”, “exchangeof notes”, “agreed minute”, “memorandum of agreement”, “modus vivendi”, or any other appellation

Of the designations, “Treaty” is the accepted generic term.

The reference to “other subjects” of the law was designed to provide for treaties concluded by inter nationalorganizations, the Holy See, and other international entities such as insurgents or as in the case of Palestine

Authority, which has not been declared as a State.

4.3.3 UN Convention on the Law of Treaty

Under Article 26 of the Law of Treaties21, every treaty in force is binding upon the parties to it and must be performedby them in good faith. A party may not therefore invoke the provisions of its internal law as justification for its failure toperform a treaty.22 This second rule is without prejudice to article 46.23

On territorial scope of treaties24, unless a different intention appears from the treaty or is otherwise established, atreaty is binding upon each party in respect of its entire territory. A treaty is void if, at the time of its conclusion, itconflicts with a peremptory norm of general international law.25 A peremptory norm of general international law is anorm accepted and recognized by the international community of States as a whole and as a norm from which noderogation is permitted and which can be modified only by a subsequent norm of general international law having thesame character. The termination of a treaty or the withdrawal of a party may take place in conformity with theprovisions of the treaty or at any time by consent of all the parties after consultation with the other contractingStates.26 On one hand a material breach27 of a bilateral treaty by one of the parties entitles the other to invoke thebreach as a ground for terminating the treaty or suspending its operation in whole or in part, on the other hand amaterial breach of a multilateral treaty by one of the parties entitles:

a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or toterminate it either:

b) i) in the relation between themselves and the defaulting state, or ii) as between all the parties;

21 The Vienna Convention on the Law of Treaties concluded on 23 May 1969, entered into force 27 January 1980.

22 Article 27: Internal law and observance of treaties.23

Under Article 46, a State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of itsinternal law regarding competence to conclude treaties as invaliding its consent unless that violation was manifest and concluded a rule of itsinternal law of fundamental importance. A violation is manifest if it would be objectively evident to any State conducting itself in the matter inaccordance with normal practice and in good faith.24 Article 29,

25 Article 53, of the Vienna Convention; Treaties conflicting with a peremptory norm of general international law (jus cogens)

26 Article 54, of the Vienna Convention27 Article 60, of the Vienna Convention



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c) a party specially affected by the breach to invoke it as a ground for suspending the operation of thetreaty in whole or in part in the relations between itself and the defaulting State;

d) any party other than the defaulting State to invoke the breach as a ground for suspending the operationof the treaty in whole or in part with respect to itself if the treaty is of such a character that a materialbreach of its provisions by one party radically changes the position of every party with respect to thefurther performance of its obligations under the treaty.

Furthermore, a material breach of a treaty, for the purposes of this article 60, consist in:

a) a repudiation of the treaty not sanctioned by the present Convention; or b) the violation of a provision essential to the accomplishment of the object of the purpose of the treaty.

If a party finds that there is no any otherwise but only consider terminating, withdrawing from or suspending theoperation of a treaty then it has to follow the following procedures:28

A party, which, under the provisions of the present Convention, invokes either a defect in its consent tobe bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing fromit or suspending its operation, must notify the other parties of its claim.29 The notification shall indicate

the measure proposed to be taken with respect to the treaty and the reasons therefore.

If, after the expiry of a period which, except in cases of special urgency, shall not be less than threemonths after the receipt of the notification, no party has raised any objection, the party making thenotification may carry out in the manner provided in article 67 of the Law of Treaty, 1969, the measureswhich it has proposed.

If, however, any other party has raised objection, the parties shall seek a solution through the meansindicated in article 3330 of the Charter of the United Nations.

Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under anyprovisions in force binding the parties with regard to the settlement of disputes.

Without prejudice to article 45, the fact that a State has not previously made the notification prescribedin paragraph (i) shall not prevent it from making such notification in answer to another party claimingperformance of the treaty or alleging its violation.

If, under paragraph (iii) of article 65 of the Vienna Convention, as indicated above, no solution has been reachedwithin a period of 12 months following the date on which the objection was raised, the following procedures shall befollowed: 31

any one of the parties to a dispute concerning the application or the interpretation of articles 53 or 64may, by a written application, submit it to the International Court of Justice for a decision unless theparties by common consent agree to submit the dispute to arbitration;

28 Article 65, of the Vienna Convention29 Hungary notified Slovakia in the Danube case of 1997 before ICJ30 Article 33 of the UN Charter, 1945, that states on one hand that, the parties to any dispute, the continuance of which is likely toendanger the maintenance of international peace and security, shall, first of a, seek a solution by negotiation, enquiry, mediation,conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their ownchoice, on the other hand, the security Council shall, when it deems necessary, call upon the parties to settle their dispute bysuch means.31 Article 66 of the Vienna Convention



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any one of the parties to a dispute concerning the application or the interpretation of any of the other articles in Part V of the Law of Treaties, 1969 may set in motion the procedure specified in the annex tothe same Convention by submitting a request to that effect to the secretary-General of the UnitedNations.

4.3.4 Treaties on International Watercourses

Though the numbers of multilateral agreements are still few in comparison to bilateral agreements, the recognition of water basins by riparian states as a unit basin calling for the participation of all hydrographic riparian States isgrowing steadily resulting into the increase of multilateral agreements. 32 Of the multilateral agreements there existthree that purport to lay down principles of general applicability of which two of these agreements are notcontemporary significant.33 In addition there exist the 1997 UN Convention on the Non-Navigational Uses of International Watercourses that has not entered into force and contains significant provisions such as equitable andreasonable utilization that is now being recognized as international customary law and hence should be fullyrecognized by States.

In Africa there are over 50 international watercourses agreements ratified by Africans States. In additional to bilateraland multilateral treaties are the soft laws, which are not binding on states but are good guidance to the directionsStates should take in the overall utilization and protection of the international watercourses. As stated above treatylaws are binding on states that are parties and hence play a key role to the legal repose to the protection of international freshwaters.

4.3.5 Customary International Law and the Contribution of the Learned Society

This is a global agreement though has not entered into force but has been recognised by ICJ as in the case of 1997Gabcikobo-Nagomoros, between Hungary and Slovak (Danube River Water Locks Case) and contains someprovisions that are already been recognised as international customary law. 34 The fact that this Convention has notentered into force should therefore not be the forefront reason to dismiss it wholesale without considering itsprovisions and the role it is set to play in the utilization, protection and preservation of international watercourses.

In 1970 the United Nation General Assembly recommended that the International Law Commission should take upthe study of the law of non-navigational uses of international watercourses with a view to its progressive development

32 There are twenty multilateral agreements concerning international watercourses, thus excluding the Barcelona Convention,referred to in the following footnote, which deals with navigation. All but one of these (the 1923 Geneva Convention on hydraulicpower were concluded since 1950 and fourteen were concluded, amended or supplemented since 1970. The rivers, lakes andbasin covered, some of which are of more than one agreement, include the following: the Niger, the Lake Chad, Lake Victoria,the Zambezi River system, the Senegal river, the Kagera River Basin, the River Gambia, (all in Africa) and the Morsel River, the

Rhine River, the La Plata River basin, the Amazon and the Mekong River basin.

33 The two older agreements are the Convention relating to the Development of Hydraulic power Affecting More than one State,and Protocol of Signature, Geneva, 9 December 1923, 36 L.N.T.S at 77; and the Convention and statute on the Regime of Navigable waterways of international Concern, Barcelona, 20 April 1921, 7 L.N.T.S. at 37. The former Convention has not beenapplied in practice, while the latter concern navigation and applies only to international rivers declared to be "navigablewaterways of international concern." see, ILC 19-74 Yearbook, at58, 60. The most recent multilateral agreement of generalapplicability though not entered into force is the United Nations Convection on the Non-Navigational Uses of Internationalwatercourses, 21 May 1997, UN Doc. A/RES/51/229.34 Such provisions are as Equitable and Reasonable Utilisation of international watercourses, see, article 5 of the Convention.



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and codification. The work of the Commission culminated in the adoption by the General Assembly of the Conventionon the Law of Non-Navigational Uses of International Watercourses on May 21, 1997.35

4.3.6 Enforcement, Compliance and Dispute Resolution

Under Article 33 of the UN Charter 36 that states on one hand that, the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first seek a solution bynegotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice, on the other hand, the security Council shall, when itdeems necessary, call upon the parties to settle their dispute by such means.

Article 35, states that: any member of the United Nations may bring any dispute, or any situation of the naturereferred to in Article 34, to the attention of the Security Council or the General Assembly; a state which is not amember of the United Nations may bring to the attention of the Security Council or of the General Assembly anydispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacificsettlement provided in the present UN Charter and the proceedings of the General Assembly in respect of the matter brought to its attention under this Article will be subjected to provisions of Articles 1137 and 12.38

Should the parties to a dispute of the nature referred to in article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council. The Security Council too can intervene if it deems that thecontinuance of the dispute is in fact likely to endanger the maintenance of international peace and the security, itshall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate.39

Without prejudice to the provisions of Article 33 to 37 of the UN Charter, the Security Council may, if all the parties toany dispute so request, make recommendations to the parties with a view to pacific settlement of the dispute.

4.3.7 Overall Lessons Learned and Best Practices

First, the prime principle in the field of international watercourse law is the principle of equitable and reasonableutilization as analyzed below. This principle provides for a balancing test relating to, for example, economicdevelopment considerations and considerations of non- harmful and non-wasteful use of watercourses. Further theConvention contains provisions, which contribute to the protection of, or curbing of the deterioration of, the quality of

36 United Nations Charter, June 26, 194537 Article 11, states that, the General Assembly may consider the general principles of co-operation in the maintenance of

international peace and Security, including the principles governing disarmament and the regulation of armaments, and maymake recommendations with regard to such principles to the members or to the Security Council or to both.

38 Article 12, states as follows: one, while the Security council is exercising in respect of any dispute or situation the functionsassigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so request, two, the Secretary General, with the consent of the Security Council, shall notifythe General Assembly at each Session of any other matters relate to the maintenance of international peace and security whichare being dealt with by the Security Council and similar notify the General Assembly, or the members of the United Nations if theGeneral Assembly is not in Session, immediately the Security Council ceases to deal with such matters.39 Article 37



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the water of watercourses such as: the general principle to exercise due diligence so as not to cause significanttransboundary harm as contained in article 7 of the Convention, and the material obligations regarding environmentalprotection as contained in articles 20, and 23 of the Convention.

The principle “not to cause significant harm” to international watercourses advances the interest of the futuregenerations that fresh water resources will not be wasted and the water quality will be good. Article 7, paragraph 1,

provides that: “Watercourse States shall exercise due diligence to utilize an international watercourse in such a wayas not to cause significant harm to other watercourse States”.40 Article 7, proved to be the most difficult provisionsduring the negotiations and the Working Group ultimately made several changes to the ILC's versions of the article,but most observers believe the changes did not alter the fundamental effect of the provision. On the other hand thishas to be balanced with the principle of equitable and reasonable utilization as advanced in article 5, paragraph 1, of the Convention. The result of the balancing the benefits to be gained by a particular watercourse state against thedetrimental effects of such a utilization on other watercourse states may imply that a certain degree of harm will becaused legitimately to one or more water course states. This is still in line with the principle of “equitable andreasonable utilization” of an international watercourse that may still involve significant harm to another WatercourseState. In such circumstances, the principle of equitable and reasonable utilization remains the guiding principle inbalancing the interest at stake.41 On the other hand it may be said that the duty to exercise due diligence or to takeall appropriate measures to prevent, eliminate or mitigate harm, amounts to an obligation to act reasonably under the

circumstances.

As articulated in the UN Watercourses Convention, therefore, the "obligation not to cause significant harm"42 or to"prevent the causing of significant harm"43 is by no means an absolute one. What therefore constitute "appropriatemeasures" in the circumstances of specific case will depend upon a variety of factors; factors relating to conditionsboth in the State whose activities may result in harm and in the State that may be harmed. And the "appropriatemeasures" to eliminate or mitigate significant harm that has been caused are to be taken "having due regard for theprovisions of article 5 and 6", and "in consultation with the affected States". The reference to articles 5 and 6 onequitable and reasonable utilization, and to consultation with the affected state, suggest that the objective of themeasures taken is to arrive at a balance of the uses and benefits of the watercourses that the states involve canmutually accept as being equitable and reasonable.

Other Regional International Water Agreement to be Replicated by African States in the Event of Developing New or Reviewing the Existing International Waters Agreements: 1992 Helsinki Convention onTransboundary Watercourses

Under the auspices of the United Nations Economic Commission for Europe (ECE) to promote a coordinated regionalapproach on the protection and sustainable development use of international watercourses or transboundary watersas referred in the 1992 Helsinki Convention, intensive negotiations and cooperative action produced agreements onseveral policy declarations and recommendations to governments to the challenges of environmental protection andsustainable use of resources. These “soft law” instruments were the root of the Convention on the Protection and

40 1994 ILC draft Articles define “significant harm” as a level of harm which while it need not be “trivial in nature and need not riseto level of being substantial”. This means a factual standard, such as, “a det rimental impact of some consequence upon, for example, public health, industry, property, agriculture or the environment, in the affected State”. Further, harmful effect “must becapable of being established by objective evidence”, Yearbook ILC II (2) (1987) at 29.41 Ibid.42 As per the language of the title of art. 7 of the UN Convention43 As per, Art. 7(1), UN Watercourses Convention



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Use of Transboundary Watercourses and International Lakes (Helsinki, 1992) also referred as 1992 UN ECE HelsinkiWater Convention.44

The Helsinki Convention is not only important in the protection of transboundary waters draining in the commonterminus as the Baltic Sea but also for the protection of such marine environment against pollution 45 emanating from

transboundary waters. This does not only augur well with the protection of international watercourses but alsoprevent the transfer of pollution to other parts of the environment. The Convention is therefore placing an increasedobligation on hydrographic riparian States on the cooperation in the protection of international watercourses,monitoring46 and public information. Article 4, of the Convention specifically calls for the prevention, control, andreduction of transboundary impact, by adopting measures to ensure that the emission of pollutants is prevented,controlled and reduced at source through the application of, inter alia, low and non-waste technology, and issuanceof license for the waste-water discharges by the competent national authorities. The 1999 Protocol on Water andHealth to the 1992 Helsinki Convention with main objective of promoting at all appropriate levels the protection of human health and well being, both individually and collectively, within a framework of sustainable development,through improving water management, including the protection of water ecosystems, and through preventing,controlling and reducing water related disease. This protocol therefore further calls for the balancing of economicdevelopment and the protection of the environment.

African Convention on the Conservation of Nature andNatural Resources 11, Algiers, 15 September 1968

Under the OAU (Now AU) auspices is the 1968 African Convention on the conservation of natural resources thatstates in article V section 2: " Where surface or underground water resources are shared by two or more of theContracting States, the latter shall act in consultation, and if the need arises, set up inter-State Commissions to studyand resolve problems arising from the joint use of these resources, and for the joint development and conservationthereof."

In reforming itself to African Union and changing its objective from purely political agenda to economic developmentthe new found Union should be more active in assisting its Member States in the equitable utilisation and protectionof international waters in Africa by emulating the position taken by the European Union that is virtually a party toalmost all international water agreements that touches on waters of Europe with a vision of enhancing theimplementation of such agreements. In the last African Head of States Conference in South Africa members resolvedto have the 1968 Convention reviewed to be in line with its new role.

General Principles

For principles to qualify as general principles of law recognized by civilized nations it must fulfil two requirements,one, a legal principle must be a general principle of law, as distinct from a legal rule of a more limited functional case,two, it must be recognized and shared by a fair number of civilized nations and probably include representation of atleast the principal legal system.

The general principle of law come into play only as a subsidiary law-creating agency, that is, in the absence of competing rules of international customary law or treaty law. Their existence in the background forestalls any

arguments that supposed gaps in international law prevent international judicial organs from deciding on thesubstance of and dispute submitted to their jurisdiction.

44The Convention was adopted on 17 March 1992 and signed the next day by twenty-five countries and the

European Community in Helsinki, (entered into force on 6 October 1996, ninety days after it was ratified by sixteen

countries), [hereafter, 1992 UN ECE Helsinki Water Convention].45

This is in line with Article 192 of the1982 United Nations Convention on the Law of the Sea (UNCLOS)46

Article 3, of the Convention



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5. REVIEW OF THE EXISTING CAPACITY OF NATIONAL AND LOCAL INSTITUTIONS FOR THEMANAGEMENT OF TRANSBOUNDARY WATER RESOURCES

5.1 Kenya National Water Sector Institutional Capacity

In Kenya, central government employees are recruited through the Public Service Commission while the LAs havebeen delegated the responsibility for hiring lower cadre staff in their respective districts. Terms and conditions of LGstaff differ from central government employees and are negotiated between LGs and Labour Unions. LGs rely ontheir local revenue for salaries and can exercise more autonomy in decision Kenya used to have a well functioningcapacity building program for Local Administrations (LAs) in the mid 1980s, which has since becomeineffective due to various reasons, including financial constraints.

WRM Training in Kenya is offered at the following institutes:

(i) University of Nairobi, Moi University, Jomo Kenyata University, and Egerton University, which run

undergraduate and graduate level training in civil engineering, water resources and environmentalmanagement.

(ii) The Kenya Water Institute, which is specifically mandated to train water sector personnel andundertake research in water related issues in collaboration with water sector agencies.

5.2 Tanzania National Water Sector Institutional Capacity

The approach towards water resources management in Tanzania has been more on learning by doing. Essentiallythe rapid water resource assessment, water sector review and the reviewing the policy, legal and institutionalframework has been made by national experts. The level of understanding of the issues and challenges,environmental, social and other physical processes has raised significantly among the various national experts, usersand other stakeholders. Minimum level of input has been realized from various studies by national experts and

international consultants.

5.3 Uganda National Water Sector Institutional Capacity

The responsibility for capacity building in Uganda lies with the Ministry of Public Service which provides policyguidelines for Human Resources Development. The Ministry also coordinates coordinate staff development andtraining in the public service. As well, the Ministry of Local Government has a specific capacity building policy thatguides training in Local Governments (LGs). It has been noted that under Local Government human resourcesdevelopment for water resources management is not included. Water resources related training in Uganda iscurrently offered at the following institutions:

(i) Makerere University - The Civil Engineering Department(ii) Makerere Institute of Environment and Natural Resources –offers graduate level training courses in

Environmental Management and Wetlands Conservation.(iii) Kyambogo University – offers undergraduate level training in Civil Engineering.(iv) National Meteorological Training Centre – offers certificate and diploma level technical and practical

training to meteorology observers, technicians and officers.(v) Water Resources Institute – is being transformed into a College of Engineering and



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Technology on water resources engineering, water resources planning and management, water resources assessment, hydrology, groundwater hydraulics, water supply and sanitation, wastewater management, river engineering, hydraulic engineering.

5.4 Rwanda National Water Sector Institutional Capacity

Prior to the promulgation of Law No 53/2010 establishing the Rwanda Natural Resources Authority, the institutionalframework lacked a coordinating mechanism and the functions related to water resources management were not fullydeveloped. The role and responsibilities of each sector based institution in regard water resources management wasnot clearly articulated, leading to confusion, uncoordinated action and overlaps in implementation. Additionally, therewas no institution with overall authority with capacity to regulate the use and management of water resources byother sector based institutions. Capacity gaps arose mainly from limited technical and financial resources availablefor water resources management. These capacity limitations are even more acute within the decentralised institutionsat district level. In consequence there has been a high degree of degradation of water resources arising fromactivities within the various sectors.

5.5 Burundi National Water Sector Institutional Capacity

Need of reinforcing human capacity is important particularly in monitoring, water supply infrastructure developmentand planning for water resources management.

International training is offered at Delft Hydraulic Institure (DHI) Delft in Netherlands, Georgia Institute of Technologyin USA, University of Pretoria in South Africa, and several other universities in Africa, Europe, Asia, and America.These institutes have trained water resources experts from Kenya, Uganda and Tanzania.

5.6 Strength and weaknesses of institutional framework for management of water resources

LVBC has a big role to play in reshaping training to strengthen transboundary water resources management. Each Partner State should not necessarily host all types training institutions, rather than selecting some of the training institutions to offer specialized courses for the benefit of the region.

5.7 Institutional Capacity Needs to Address identified weaknesses

The core to successful water resources management lies on building the knowledge, skills and institutional base atthe national, basin and local level to utilize the relatively new and multi-disciplinary tools of integrated water resources management. With the advent of the present approaches to water resources management, whichemphasize integration of sectors, comprehensiveness, participation and subsidiarity, and which treat water as both asocial and economic good, the requirements for knowledge and skills now go beyond the traditional skills of hydrology and engineering to include economics, law, environmental and the social sciences, and skills for water conservation and water demand management. Also, specific tools such as River Basin Modeling and DecisionSupport Systems, as well as strategies for communicating and engaging with communities and stakeholders, arenow essential. Present capacity for transboundary water resources management is far from being adequate and

effective. Hence significant capacity building needs are required at national and regional level top cater at least for the subjects indicated herein. Comprehensive assessment of the university capacities is required and a decisiontaken by Partner States on what and how these institutions will offer training to cater for the region‟s needs.



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6.0 REVIEW OF THE REGIONAL AND NATIONAL INSTITUTIONAL ARRANGEMENTS FOR THEIMPLEMENTATION OF THE PROPOSED HARMONISED POLICIES, LAWS AND REGULATIONS

6.1 Regional Institutions

These agreements and protocols have been developed in line with the core principles enshrined in InternationalTreaties and Conventions governing management and development of transboundary water resources such as theHelsinki Rules on the Uses of the Waters of International Rivers of 1966; The United Nations Convention on the Non-Navigational Uses of International Water Courses of 1997which outlines principles of International Water Law; theDublin Principles of 1992; and the Rio Declaration on Environment and Development (1992) which promotecoordinated management, development and utilization of shared water resources in accordance with the agreedprinciples of equitable and reasonable use, fairness, effectiveness, efficiency and sustainability on the basis of sovereign equality, mutual benefit and good faith, and absence of appreciable harmful transboundary effectsdownstream. Principles and policies with regard to emergencies, disasters, aggression and conflicts have also beenconsidered. SADC Revised Protocol on Shared watercourses has provision for settlement of disputes. Mattersrelated to confidentiality and sovereignty have also been reviewed and found to enhance the principles enshrined inthe treaties, conventions, protocols and agreements.

It must be recognised that institutional arrangements is the centre of international water agreements that determinesthe effectiveness of the agreements. The involvements of supreme organ of States as Heads of State in key decisionmaking or setting the development policy will give the agreements the authority it requires and to some extent thepolitical good will. Room for public participation to involve the communities that are directly concerned with utilisationof shared resources in decision making is paramount as this will make users own the decisions and be party to them.The institutional arrangements should therefore encompass the decision making organ as the Conference of Head of State that defines the Co-operation and the development policy of the Organisation and the Council of Ministers thatis the highest executive organ of the organisation that elaborates the general policy for development and backed withTechnical Advisory Team or Committee headed by the Commissioner or the Secretary General of the NileCommission. All the institutions must have well defined none overlapping functions.

6.1.1 Lake Victoria Basin Commission

Lake Victoria Basin Commission (LVBC) is a specialized institution of the East African Community (EAC) that isresponsible for coordinating the sustainable development agenda of the Lake Victoria Basin. The establishment of the Commission has, been sequential and basing itself on study outputs and step-wise building of the institution. TheEast African Community established the Lake Victoria Basin Commission formerly known as the Lake VictoriaDevelopment Programme in 2001, as a mechanism for coordinating the various interventions on the Lake and itsBasin; and serving as a centre for promotion of investments and information sharing among the various stakeholders.The programme is the driving force for turning the Lake Victoria Basin into a real economic growth zone. Thecommission envisages a broad partnership of the local communities around the Lake, the East African Communityand its Partner States as well as the development partners. The commission‟s activities are focusing on the following:

• Harmonization of policies and laws on the management of the environment in the Lake and itscatchment area;

• Continuation of the environmental management of the Lake, including control and eradication of thewater hyacinth;

• Management and conservation of aquatic resources, including fisheries;• Economic activities in the development of fishing, industry, agriculture and tourism; and• Development of infrastructure, including revamping the transport system on and around the Lake.

http://www.eac.int/

http://www.eac.int/



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The Commission further places emphasis on poverty eradication and the participation of the local communities. It isexpected to make a significant contribution towards reduction of poverty by uplifting the living standards of the peopleof the Lake region. This is to be achieved through economic growth, investments and sustainable developmentpractices that are cognizant of the environment.

The policy and decision making organ for the Commission is the Sectoral Council which is constituted by Ministersfrom the Partner States while the Committee comprises of all Permanent Secretaries from the three Partner Stateswhose Ministries' mandates relate to the Lake Victoria Basin, particularly Water, Agriculture, Transport,Communication, Energy, Tourism and Wildlife, Fisheries, Environment and Economic development.

National Focal Points for the Programme in the Partner States have been set up. Focal Points are the main linksbetween the Programme and the Partner States. They are also responsible for coordination and harmonization of theLake Victoria Basin activities of the various Ministries, NGOs, special interest groups and other development partnersin the Partner States.

Current Coordination Arrangements

The National Focal Point Ministries for the Lake Victoria Basin Commission provide a link between the LVBC

Secretariat and Partner States. Currently, the designated Focal Point Ministries are:1. Ministry of Water, Environment, Land Management and Urban Planning – Burundi2. Ministry of Environment and Mineral Resources – Kenya3. Ministry of Natural Resources – Rwanda4. Ministry of Water and Irrigation – Tanzania5. Ministry of Water and Environment- Uganda,

Shared Vision and Strategy Framework for Victoria Basin

The Shared Vision and Strategy Framework for Management and Development of the Lake Victoria Basin developedin 2003 is a strategic framework that is to guide the work of the LVBC and all its stakeholders. The Shared Vision andStrategy Framework for Management and Development of LVB focuses on 5 thematic (policy areas):

a) Ecosystems, Natural Resources and Environment;b) Production and Income Generation;c) Living condition and quality of Life;d) Population and Demography; ande) Governance, Institutions and Policies.

LVBC Operational Strategy (2007-2010)

EAC Development Strategy (2006 – 2010) requires LVBC to implement among others the Shared and StrategyFramework for Management and Development of LVB. To operationalize this, LVBC has prepared an OperationalStrategy which is now approved. The Operational Strategy, which is based on the 5 thematic areas of the shared

vision, has generated 9 programme Areas. However, for the period of the EAC Development Strategy, theOperational strategy is focusing on 6 priority programme areas:

a) Governance and Institutional Development;b) Maritime, Safety and Security;c) Environment and Natural Resources Management‟ d) Water Resources Management;e) Information and Communication;f) Support programme



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The shared Vision, Mission and Operational strategy have contributed to the design of the Building Blocks for policyharmonization. The current coordination arrangement relate to water, environment, land, natura management andUrban Planning – Burundi2. Ministry of Environment and Mineral Resources – Kenya3. Ministry of Natural Resources – Rwanda

4. Ministry of Water and Irrigation – Tanzania5. Ministry of Water and Environment- Uganda,

6.1.2 Lake Victoria Fisheries Organization

The Lake Victoria Fisheries Organization was formed through a Convention signed in 1994 by the East AfricanCommunity Partner States of Kenya, Tanzania and Uganda as a result of the need to mange the fisheriesresources of Lake Victoria in a coordinated manner. The Organisation is an institution of the EAC whose aim isto harmonise, develop and adopt conservation and management measures for the sustainable utilisation of living resources of Lake Victoria to optimise socio-economic benefits from the basin for the three Partner

States.

LVFO is implementing fisheries co-management on Lake Victoria, by legally empowering fisheries communitiesto become equal and active partners with Government in fisheries management and development. LVFO isguiding, supporting and implementing the building of the capacity of communities to participate in managementand is making a real difference to their lives.

6.1.3 Proposed Mechanisms for enhancing National and Regional Institutional arrangement

The mandates and functions of water resources management are set out in national policies, as well as environmentmanagement.. The current manadate of LVBC relate to Water, Agriculture, Transport, Communication, Energy,

Tourism and Wildlife, Fisheries, Environment and Economic development.

National level

Tanzania has a section at the Division of Water Resources that deal with transboundary water resources issues. Asimilar arrangement exists in Uganda. In Kenya transboundary water resources management issues are also under the Directorate of Water Resources. In Rwanda this mandate is under the Ministry of Natural Resources(MINIRENA), while in Burundi this mandate is The Ministry of Land Management, Environment and Tourism is vestedwith the overall responsibility of water resources management in the country. The organization for transboundarywater resources management needs to be clarified. It would be proper to have a section or unit dealing withtransboundary water resources management in all the Partner. This will enhance coordination and exchange of relevant data an informant between countries.

Regional level

The mandates of LVBC in respect of transboundary water resources management are clear. The organizationstructure seems to address water an environmental issues through projects and programmes rather than have aspecialized unit or department to deal with coordination of natural resources, water an environmental issues onroutine basins. Thus at LVBC level it is recommended to establish a unit that is responsible for coordinatingtransboundary issues related natural resources, water and environmental.



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7.0 REVIEW OF THE EXISTING PARTICIPATION OF COMMUNITIES AND OTHER STAKEHOLDERS IN THEMANAGEMENT OF TRANSBOUNDARY WATER RESOURCES

7.1 Regional Level

Stakeholder participation is a pre-requisite for effective and sustainable integrated water resources management anddevelopment in both national and transboundary basins. Adequate involvement and participation of stakeholders inplanning, management and decision making at all levels, on issues related to water resources management anddevelopment need to be strengthened.

The international principle on water and sustainable development, (Dublin Statement, UNCED and Rio Agenda 21),which is adopted by NAWAPO provide the following guiding principle:

(i) Water management and development should be based on a participatory approach, involving users,planners, and policy makers.

(ii) Women play central role in the use, management and protection of water resources and thus should be

involved fully in the decision making process.

The procedure to identify and involve both primary and secondary stakeholders in water policy formulation andimplementation has been proposed to be guided by Policy Task Force. The process will encompass training of thetask force, planning and holding of workshops and publ ic gathering and recognizing and defining levels and extent of public involvement, social analysis and participation levels, provide guidelines on information products for decisionmakers and public consumption. It will also involve stakeholder mapping in order to identifying the stakeholder interests, roles and level of influence and importance of the different stakeholder groups in the Basin at national andtransboundary level, with a detailed functional analysis.

Participation of various stakeholders including communities is very important component in the implementation of variouswater resources management interventions. Without involvement of relevant community and other stakeholders,

realization of the planned interventions is always in jeopardy. Through involvement of stakeholders ownership of theintervention is transferred to the hand of primary beneficiaries and thus ensures sustainability of the interventions. In mostcases stakeholders are divided into two categories i.e. primary and secondary stakeholders.

(i) primary stakeholders are both directly and indirectly affected by the natural and water resources relatedactivities such as local communities who entirely depends their livelihoods from the water and naturalresources or whose activities are directly rely on or impact the water resources

(ii) Secondary stakeholders – this include stakeholders who play an intermediate and facilitative role in the basine.g. development partners, public sector agencies, NGOs and private sector

The reviewed policies clearly indicated the need of involving local community and other stakeholders in implementation of

water resource management intervention. Further the policies recognize the drawbacks which could be encountered if community and other relevant stakeholders will not be fully involved.

Based on the above narration, stakeholders‟ participation in the Lake Victoria basin can be categorized at three levels i.e.international/regional, national and local levels



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7.2 International and Regional agencies

Some of agencies worth mentioning here include funding agencies and international organizations such as SIDA, UNDP,NORAD, World Bank, EU etc. (a detailed list will be explored during the national consultative workshop). The regionalagencies considered as key stakeholders in the Lake Victoria basin with regard to the use of transboundary water resources related activities include NBI/NELSAP, EAC/LVBC, LVFO, FAO, LVEMP etc. (more detailed list after the

national consultative workshops).

7.3 National and Local Level

Stakeholders considered pertinent under this category include:

(i) Various government ministries, departments and agencies for water, agriculture, land, fisheries, energyand mineral, hydropower, health, gender and children environment, tourism etc

(ii) Semi autonomous government agencies including National Environmental Management Council,National Environmental Management Authority, water basin Boards etc.

(iii) Educational and Research institutions – these are more relevant in imparting necessary knowledge andskills in water resource management. These also are important in innovations and development of

protocol that could facilitate proper management of water resources(iv) Local government authorities – This category include district/provincial authorities, village council, village

assemblies, ward development committees etc.(v) Community Based Organizations - It includes water user associations, cultural groups 9detailed list

after the national consultative workshops)(vi) Special interest groups including women groups, Youth groups, people with disabilities(vii) Local communities

7.4 Potential Roles of communities and other stakeholders in implementation of the proposed policies,laws and regulations

The roles that can be played by various stakeholders in implementation of the proposed policies, laws and regulations are as

follows:

(i) International agenciesa) Provision of financial and technical support to implementation various interventions undertaken

in the basin

(ii) Regional agenciesa) Enhance collaboration of various stakeholders at regional levelb) Solicit funds from various international agencies to implement planned interventions

(iii) National agenciesa) Coordinate planning, implementation and monitoring of various undertakings in the basin on

behalf of their respective governments

(iv) Educational and Research institutionsa) Engage on capacity building of technical staff, conduct research for various innovations

needed to improve water resource management as well as conducting short term courses toimprove staff work performance.

(v) Local government authoritiesa) Provision of services related to water supply and sanitation to the local communitiesb) Coordinate the provision of local inputs into the government planning and decision



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making process(vi) Private sector

a) Provision of consultancy services and other technical services to the public sector e.g.planning, implementation, operation and maintenance of water supply and sewerageprojects

(vii) Local communitya) Special groups of local community to provide lobbying and advocacy to influence

inclusion of the interests of their members in all development activities in their communities.

b) General community to participate in planning and implementation of water resourcemanagement undertaking

c) Implement various projects.

7.5 Gender Mainstreaming

Gender mainstreaming in water resource management is one of key issues which need great attention. This is due tothe fact that without deliberate efforts men and women will continue to have unequal access and control over water

resources. Various policies studied mention the need of enhancing gender equality. The policies also mention theneed of both men and women to be active participants in the development and planning process without makingwomen as passive participants.

To ensure that both women and mane are active participants in all aspects related to management of water resources gender has been mainstreamed in water resources use and management through capacity building,institutional strengthening and affirmative action in the composition of various groups related to water resourcemanagement.

Key approaches to ensuring effective gender mainstreaming in water sector interventions include:

(i) Ensuring that all units and all personnel within the system have the responsibility for ensuring

involvement of both men and women in all aspects of programmes and policies(ii) Incorporating gender concerns into the planning and decision making

process.(iii) Gender sensitization is being promoted at all levels but above all

at the decision-making levels. To remove the stereotyping and the regressive notions on women‟sinvolvement in the water sector, stakeholders are being sensitized on the different needs,opportunities and constraints of men and women participation in the water sector.



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8.0 TOWARDS HARMONISED POLICIES, LAWS AND REGULATIONS FOR TRANSBOUNDARY WATERRESOURCE MANAGEMENTS

8.1 Introduction

In recent years international consensus has built around the concept of integrated water resources management.Principle 1 of the Dublin Principles enunciated the concept of fre shwater “as a finite and a vulnerable resource,essential to sustain life, development and the environment.” Since water sustains life, effective management of water demands a holistic approach, linking social and economic development with protection of natural ecosystems.47 Inother words, the framework for the management of water resources must integrate all uses and users of water resources into a common and sustainable management framework. This concept has been popularized under thephrase “integrated water resources management.”

The integrated nature of water resources connotes that water is an integrated resource but also that the functionsserved by water transcend many sectors of national life. The institutional and legislative framework for water resources management therefore must provide mechanisms for managing water in an ecologically integratedfashion. Additionally, to facilitate integration in the management of the cross-cutting functions of water, the frameworkmust provide for these to be carried out in a manner which avoids duplication, minimizes conflict, and provides for conflict resolution. In other words, the framework must provide for integrated management of water resourcefunctions.

The integrated nature of water arises from hydrological reality. Water flows in catchments or basins, which are unifiedand self-contained natural units within which rainwater gathers and flows. Within a catchment all natural water constitutes one hydrological cycle, whether it is surface water or groundwater. IWRM perceives the catchment as thebasic unit of water resources management. Since, in the case of shared water resources, catchments transcendboundaries, IWRM imposes an obligation on states sharing international water resources to establish frameworks for cooperation in managing such shared water resources on a catchment basis, notwithstanding the intervention of aninternational boundary.

Regarding the functions of water, the goal and objective of IWRM is to ensure that the available water resources aremanaged in order to meet competing needs for water resources across sectors in an equitable, sustainable and cost-effective way. Needs are defined in a holistic fashion and encompass:

Human needs for domestic use and sanitation;

Productive use in agriculture (irrigation), industry and commerce;

Cultural functions, i.e. recreation, aesthetics and religious functions; and

Ecological functions i.e. environmental needs.

As noted, the concept of “needs” transcends beyond human needs to include the ecological functions served bywater resources. Ecological needs go beyond the basic needs of flora and fauna which depend on water resourcesand extend to the imperative to maintain a balanced and healthy habitat capable of sustaining a biologically diverseenvironment in line with as articulated in the Convention of Biological Diversity of 1992. Environmental conservationtherefore is an integral part of water IWRM.

Effective IWRM calls for rationalization of institutional roles and mandates to avoid duplication and the potential for conflict. Additionally, it imposes an obligation on water resources managers across all sectors to implement and giveeffect to IWRM principles. Among the key IWRM principles are that:

47 Nile Basin Initiative: Shared Vision Program – Water Resources Planning and Management Project, Water Policy Guidelines andCompendium of Good Practice, November 2006, Box 2 at p. 7 et seq.



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Water is a finite resource;

Water is a social good as well as an economic good;

Every one has a right to equitable access to water resources;

In allocation and use of water resources the precautionary principle applies;

The polluter shall pay for remedying damage; and

There is a right of public participation in decision making.48

An overall plan is required to envisage how the transformation can be achieved and this is likely to begin with a newwater policy to reflect the principles of sustainable management of water resources. To put the policy into practice islikely to require the reform of water law and water institutions. This can be a long process and needs to involveextensive consultations with affected agencies and the public. Bringing some of the principles of IWRM into a water sector policy and achieving political support may be challenging, as hard decisions have to be made.

8.2 Harmonization Principles

The Water Policy Guidelines and Compendium of Good Practice has shown than in “in recent years, this pattern of policy revision, leading to widespread water sector reform, has been followed in many countries because of twomajor shifts in thinking. The first of these affects the role of government in general – that governments should bemuch less directive and intrusive, relying more strongly on community and private sector ideas, initiatives, financeand capabilities. The second is specificto the water sector – to move from the „supply oriented‟ approach to providingwater, which was coupled in the past with neglect of the environment, to integrated water resource management (IWRM)”. And, hence is also noted “the purpose of a water policy statement or document is to establish principles of equitable, efficient and sustainable utilisation of water resources. Moving from document to implementation, the

purpose of water policy itself is to maximise the economic and social benefits of water while ensuring that these areshared in an equitable manner and that environmental sustainability is preserved. This the first fundamental principlewhich needs to be observed in the harmonization process.

The principles upon which the laws, polices and institutional frameworks should be based are drawn from theinternational and regional agreements to which the two countries are parties and whose tenets they have committedthemselves to. The Convention on the Law of Non -

Navigational Uses of International Water Courses of 1997 (not yet in force), represent general consensus amongnation states about the status of international law on water resources. The principles are also enshrined in the NileBasin Cooperative Framework and the Lake Victoria Protocol. In particular, Article 112(2)(b) of the Treatyestablishing the East African Community provides for the obligation of the partner states to conserve the environmentand natural resources of East Africa. Among the obligations accepted by the states is in regard to the conservation of water resources and the prevention of pollution. In particular, Article 112(2)(b)(vi) provides for the need to protectspecifically Lake Victoria and its water resources.

Some of the key principles include the following:

(i) Sustainable utilization.

(ii) Equitable utilization as between the states sharing the watercourse.(iii) The prevention of significant harm to other watercourse states.(iv) Prior notification, exchange of information and consultation regarding planned measures.(v) The assessment of the potential impacts of planned measures.(vi) The preservation of environmental integrity of the watercourse including prevention of pollution.(vii) Integrated management of water resources.

48These principles can be found in the Water Policy Guidelines and Compendium of Good Practice fn. No 1 above.



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(viii) Basin management and the community of interest of all states that share the watercourse in the river as a whole.

Key Legal Principles of Transboundary Water Resources Management which are included in the United NationsConvention on the Non- Navigational Uses of International Water Courses of 1997, and which are also including theProtocol for the Sustainable Development of the Lake Victoria Basin,

2003. include the following:

(i) The principle of international Cooperation – which refers to undertakings on international water resources which is governed by two or more states;

(ii) The concept of an international watercourse – being a system of surface waters and ground watersconstituting by virtue of their physical relationship, a unitary whole, parts of which are situated indifferent states and normally flowing into acommon terminus45.

(iii) The principle of equitable utilisation of the water resources in shared watercourses.(iv) The obligation not to cause significant harm to co-riparian: In utilizing the resources, states are

required not to cause significant harm to the interest of other states by pollution or other conduct46.(v) The protection of present reasonable and beneficial uses of the water 47 : International law favours

the protection of present beneficial uses of shared waters and discourages wasteful uses.(vi) Notification and information sharing : The 1997 Convention and general international law require

states to cooperate and share information regarding the development of shared water resources. Theprinciple of prior notification requires that each of the riparian States should notify other basin States of planned measures or planned activities within its territory that may have adverse effects upon thoseother States48.

(vii) The principle of regular exchange of data and information: essential for confidence building, and basis upon which states can build a reliable and comprehensive knowledgebase.

(viii) The principle of the prevention, minimisation and control of pollution of watercourses so as tominimize adverse effects on freshwater resources and their ecosystems, including fish and other aquatic species, and on human health50.

(ix) The principle of the protection and preservation of the ecosystems of international watercourses: whereby ecosystems are treated as units, all of whose components are necessary totheir proper functioning, and that they be protected and preserved.

(x) The principle of community of interest in an international watercourse: whereby all States sharingan international watercourse system have an interest in the unitary whole of the system.

(xi) The principle that water is a social and economic good ( The Dublin and Copenhagen Principles1991 )

Other emerging principles are:

(i) The principle of environmental impact assessment of any planned activity (Refer Protocol on LakeVictoria to the East African Community Treaty, the proposed FAO promoted Convention on Lake

Malawi/Niassa/Nyasa, the Draft Cooperative Framework for the Nile Basin, the 1992 ECE HelsinkiConvention Article 3(1)(h)and the 1987 UNEP Guidelines on Environmental Impact Assessments).

(ii) The principle of environmental audits of existing projects and economic activities in a given Basin(Protocol on Lake Victoria to the East African Community Treaty, the proposed FAO promotedConvention on Lake Malawi/Niassa/Nyasa, the Draft Cooperative Framework for the Nile Basin, UNEP/Industry and Environment: Guidelines on Environmental Audits);

(iii) The precautionary principle refers to each riparian State to take the necessary measures to preventenvironmental degradation from threats of serious or irreversible harm to the environment, despite alack of full scientific certainty regarding the nature and extent of the threat;



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(iv) The “polluter pays” principle refers to the person that causes the pollution, shall as far as possiblebear any costs associated;

(v) The principle of pollution prevention at source – whereby pollution is prevented at source, rather than cleaned up after being emitted;

(vi) The principle of public participation, whereby decisions about a project or policy take into accountthe views of the stakeholders;

(vii) The principle of sustainable development – requires that present uses of resources must take intoaccount satisfying the needs of this generation without denying the rights of future generations to usethe same resources.

(viii) Permanent sovereignty over natural resources: the permanent sovereignty of each people over their natural resources as enshrined in Article 2 of the United Nations Covenant on Civiland Political Rights of 1966.

The process of harmonization envisaged herein recognize the similarities and differences as contained in nationalpolicies, laws and regulations which take account of, and give effect to, that country‟s particular circumstances. Whatwill be provided are the frameworks which minimize the differences between national policies and to provide for regional framework. This important because implementation is at national level. Effective harmonization depends onthe existence of a cooperative framework which are in place including the EAC Treaty and Protocol for Sustainable

Management and Development of the Lake Victoria basin as well as Nile Cooperative Framework.

8.3 Building Blocks for Harmonized Policies, Laws and Regulations

8.3.1 Building Block 1: Cooperation in water resources management and development

(i) Economic integration from the use of transboundary water resources

It is well recognize that the Lake Victoria Bain basin has extraordinary natural endowments, yet the basin is characterised by extreme poverty, conflicts, famine and disease in some of the areas. However, there exists

unparallel opportunity for development that could enhance food and energy security, industrial development,environmental conservation, transportation and other development activities.

Kenya, Uganda and Tanzania signed a treaty for the formation of East Africa Community (EAC), in November 1999, and committed itself to a partnership based sustainable development approach that recognizes Lake Victoriaas an economic growth zone. Rwanda and Burundi later acceded to treaty in 2005. The Lake Victoria BasinCommission (LVBC) was created by the East Africa Community member States as the vehicle through whichcollaboration in sustainable development shall be pursued. All the EAC Partner States endeavour to foster co-operation in the sustainable management and equitable utilization of shared water resources. As evidenced by thesigning of the Protocol for Sustainable Management and Development of Lake Victoria Basin.

For example Tanzania and Uganda has been cooperating on Kikagati on Kagera River, but a clear framework on the

issue of benefit sharing is required. There are similar ongoing or planned projects in the Kagera, Mara and Sio-Malaba-Malakisi, etc which will buided by the regional policy. Because of the transboundary character of theresource for which Tanzania and Uganda on the Kagera, Kenya and Uganda on the Sio-Malaba-Malikisi and Kenyaand Tanzania on the Mara have joint projects through the NELSAP (NBI) there is the imperative to have in place aregional policy to guide such collaborations. When Lake Victoria level went down fisheries were affected, urbanwater supplies and harbor operations were affected as well as hydro power generation was also affected and this inturn affected the economy of the whole region.



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It is also important to take into account that issues of communication, advocacy as critical to achieving appropriatecooperation. There is need for people to understand the issues involved and the associated positive and negativeimpacts in order to cooperate, enhance proper communication and awareness is very important to inform the people,developing and disseminating popular versions of Policies, Vision, guidelines, and Laws to enhance effectivecooperation. In order to enforce policies and laws it is critical to enlist the good will of people and the political branch.

Proposed Policy Direction

Recognizing the imperative to achieve optimal production and benefits from the use of transboundary water resources and avoid any potential conflicts, the following issues need consideration to enhance cooperation andhence economic integration:

Water resources shall be developed and managed in an integrated manner to contribute to regionaland national economic integration and development on the basis of balance, equity and mutual benefitfor all riparian countries. In implementing this policy the reference point shall be the Shared Vision andthe Protocol for Sustainable management and Development of the Lake Victoria Basin.

Partner States shall endeavour to promote and exploit opportunities for joint water resourcesdevelopment in shared watercourses to maximize benefits from the use of common transboundary

water resources and consolidate regional cooperation. Promote awareness of the people to understand the issues involved and the associated positive andnegative impacts in order to cooperate.

(ii) Water resources and inter-sectoral cooperation

The National Water Policy of Uganda water is clear about how it envisages cooperation in the context of transboundary water resources. The policy recognizes that by virtue of her location, both as upper and lower riparian, Ugandan interests lie within securing her euitable share of the water resources of the basin, ensure goodwater quality in the water bodies within the national boundaries is maintained for sustainable use, and promoteregional cooperation for optimal resource use. Its policy principles adhere to the various currently acceptableprinciples of international law on the use of shared water resources. Thus the policy clearly stipulates need for a

coordination strategy regarding international water resources issues, in particular related to utilization of the Nilewaters and safe guarding of the water quality of the lakes; Victoria, Kyoga, Albert, George and Edward; which isrecognized as a national level function.

Tanzania’s National Water Policy recognizes that the country is riparian to trans-boundary water bodies withneighbouring countries, and that large abstractions and use of the transboundary water resources requiresunderstanding and agreement among the riparian states. It further recognizes that the each of the trans-boundarywater bodies exhibits unique characteristics, and a complex range of water management challenges which needeffective and joint management strategies to address them. It calls for identification of national priorities related tothe management of trans-boundary water will be carried out in collaboration different national institutions, effectiveuse of transboundary water resources to meet different social and economic demands based on the principle of equity, right and rationality, need for framework for the management and utilization of trans-boundary based on the

need for fostering regional cooperation, as well as technical collaboration on areas of research, data collection andinformation exchange will be promoted.

Rwanda’s National Water Policy is in final stages of approval. The policy follows generally accepted principles of international law. The policy recognizes that, Rwanda, as a riparian country within Nile and Congo River basinshas a reciprocal obligation to utilise its shared water resources sustainably and equitably. It recognizes theimperative to cooperate with its neighbours in the management of the shared water resources, and avoid actionswhich can degrade the shared water resources and cause significant harm to other riparian States. It emphasizesneed for neighbours must equally respect and give effect to Rwanda‟s right to utilise the shared water resources



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for its development needs. The principles of shared water resources management have been taken on board inkey regional instruments to which Rwanda subscribes, including the East African Community Treaty and itsProtocol for the Sustainable Management of Lake Victoria and its Basin, 2003, and the evolving Ni le BasinCooperative Framework. Thus, the National water resources management policy must accordingly provide aframework for the sustainable and equitable management of Rwanda‟s shared water resources on the basis of reciprocity with its neighbours in the shared basins, and give effect to the growing inter-dependence of the

countries in the region. The policy further notes that in the utilization of shared water resources, Countries shouldstrive to maximize and equitably share the benefits. The Government of Rwanda policy aims at fostering co-operation in the sustainable management and equitable utilization of shared water resources. The Rwanda policyfoster co-operation in the sustainable management and equitable utilization of shared water resources.

The Kenya Government developed the Sessional Paper No. 1 of 1999 on National Water Policy on Water Resources Management and Development, which sets out the policy direction in the management anddevelopment of the water resources in the country. The water Policy does not have specific provisions for transboundary water resources management and therefore does not give policy direction on the management of shared water resources. In order to address this policy gap, government, in 2002, embarked on the process of preparing a specific policy on the utilization of shared water resources (specifically, Lake Victoria water resources).To this effect a draft policy has been prepared and is still going through the review process by the relevant

authorities. Kenya is a members of the East African Community (EAC) who jointly prepared the East African Co-operation Development Strategy (1997 – 2000) in which the Lake Victoria basin was designated as a regionaleconomic growth zone to be developed through a coordinated implementation process by the Partner States (EAC,1997a). Subsequently, the EAC countries signed a Protocol for the Sustainable Development of the Lake VictoriaBasin (2003) and established a Lake Victoria Basin Commission. It follows therefore that key principles enshrined inthese documents are what each of the partner states will stand for.

According to the Treaty, the Partner States agreed to cooperate in the following areas that relate to utilization of water resources:

Agriculture and food security

Environment and natural resources management

Tourism and wildlife managementHealth, social and cultural activities

The water resources management and development are covered under the area of environment and naturalresources management.


Inter-sectoral cooperation within the framework of integrated water resources management is the key to effective andefficient utilization of transboundary water resources. All national policies promote inter-sectoral cooperation, whichshould be compatible to regional policy.

Promote proper communication /Awareness as an important tool to inform the people to understandissues in order to cooperate and obtain broad-based suport, and generation of broad-basedpartnerships.

Regional and national institutions shall ensure the collaboration of all affected sectors in themanagement and development of water resources to achieve the goals of regional integration,upholding the principle of equitable utilization, aiming at poverty eradication enhancing economicgrowth and sustainability.



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(iii) Communication and collaboration

All the Partner states water policies recognize the imperative to communicate and collaborate on issues related to

transboundry water resources. In Kenya a critical review of the implication of other laws, regulations and policies

(environment, mining, energy, forest etc) on water resources tends to confirm the need for coordinated management

of water. In Uganda the policy requires that all developers and providers of water services are required to providedata and information pertaining to their activities. The Directorate of Water Development collects, collates, analyzes,

archives and disseminates this information for public use and management of water resources. Tanzania’s National

Water Policy recognizes that water resources management is a multi-sectoral activity that requires an effective

collaboration and coordination mechanism among sectors at all levels. A communication strategy and plan is in place

and under implementation at National and Basin level. The Rwanda policy sites lack water data and information

exchange mechanisms between regional river basin riparian countries as one of the main challenges. The Nile Basin

Initiative - Water Policy Guidelines and Compendium of Good Practice has provided that the key to successful social

change lies in good communication between water sector professionals and civil society stakeholders and in

ensuring a broad base of participation, particularly in respect of the


Recognizing that issues of communication, collaboration and advocacy is among the critical components to ensureoptimal benefits to the use of transboundary water resources. The following policy statements are proposed:

Establish and institutionalize of two way communications between and among sectors, national and regionalinstitutions and transboundary water resources management. Relevant Basins or Catchments should bestrangthend to play day-to-day agreed activities.

Develop and implementation of data and information sharing protocols.

Promote publication dissemination of data and information to general public on the state of water resourcesand its use on regular basis.

Develop regional and implementation of research findings.

(iv) Conflict management mechanisms

The lake basin has a resource-defined ecosystem where conflict occurs between stakeholders with specific interestsand inter-relationships as well as with restricted perceptions of the resource situation which if not attended to, maydevelop into future social and political conflict and unrest. In other cases conflicts have arisen from lack of government coordination, coordinated intervention and law enforcement, and could escalate into conflicts betweeneconomic actors, sectors and levels of government. For example, fishing in the lake, increased competition amongfishers and fish processing agents give rise to conflict over national control of lake waters.

Preliminary discussion in Burundi indicated that joint conflict management mechanism in the forthcoming NationalPolicy is necessary tool to enhance cooperation. Uganda Policy has underscored that potential conflicts aredeveloping between upstream and downstream users. Locally, it is mentioned, that upstream riparian may use thewater in ways, which, for example, make water quality unsuitable for the downstream use. In Kenya themanagement of water affairs were unsuccessful due to institutional weaknesses including over-centralized decision-making processes, an inappropriate and run-down monitoring network, inadequate water resources database anddocumentation, discontinuous assessment programs, uncoordinated source development, inoperative water rights,absence of special courts to arbitrate water use conflicts, and a generally weak institutional setup; all these affectedthe sector‟s performance. In Tanzania the former approach was sector oriented not fully recognizing the multi-sectoral linkages, and was based on regional development as the basis for planning, did not focus on institutionaland capacity and management considerations, was oriented towards the development of the water resources and not



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on the protection or management of the water resources, was based on regulation as a primary instrument for implementing the water policy. Many of the conflicts over water use which exist today are a result of thisdevelopmental approach. The new approach has changed this situation to a great extent. Conflicts are mediated byusers themselves through their Water User Associations, Catchment Committees which are in the making, and BasinWater Boards. Rwanda Water Policy notes where there is a potential adverse impact arising from plannedmeasures, States should negotiate in good faith to resolve any issues arising from the measure, and avoid conflict.


Lake Victoria Basin falls under the Protocol for the Sustainable Development of the Lake Victoria Basin and hasprinciples governing transboundary water resources management. To ensure conflict management mechanisms withthe framework of this protocol the following policy measures may apply:

Promotion of transparent system of sharing information, costs and benefits that aim at buildingconfidence and trust among the partner States.

Establish mechanisms to resolve the existing and future conflicts among the various entities mandatedto manage components of water resources.

Promote incentive mechanisms for resolving water resource use conflicts.

Provide regional stakeholder forum with diverse constituencies to share ideas and generate consensuson their priorities and interests to build confidence and trust.

Uphold the principle of international cooperation on matters related to the utilization of transboundarywater resources in order to mitigate conflicts, which may include the obligation not to cause significantharm to co-riparian, and notification and information sharing.

(v) Benefit sharing and equity consideration

UN Watercourses Convention Article 8(1) provides “ watercour se States shall cooperate on the basis of sovereignequality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protectionof an international watercourse Benefit sharing in respect of transboundary water resources, though mentioned insome of the national policies, is not institutionalized in the transboundary context. Hence there lacks management

tools for assessment, negotiation and sharing of benefits. It is important to note that benefits sharing can only work if there is equitable and reasonable allocation of shared water resources which is balanced with the duty of states notto cause significant harm to other riparian sates in the utilization of the resources. Therefore benefit sharing shouldgo hand in hand with establishment of mechanisms for equitable allocation of the shared water resources.


Promote equitable allocations of transboundary water resources that aim at enhancing sharing of benefits.

Promote dialogues at the different levels from trasnboundary, national and local level; to ensuresustained progress and achievement of goals and objectives set out in the EAC Treaty and Protocol for sustainable management and Development of the Lake Victoria Basin.

There is need to develop and promotemanagement tools for assessment, negotiation and sharing of benefits.

Promote mechanisms for increasing awareness of for regional stakeholders on benefits and sharing of benefits.

8.3.2 Building Block 2: Sustainable water resources development and management



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(i) Water for Socio-Economic Development (water for food security, energy security, industrial security, water supply, sanitation and hygiene, etc)

The NAWAPO prescribes priority water uses: “In planning water uses, water for basic human needs in adequatequantity and acceptable quality will receive highest priority”. Water for the environment to protect the eco-systemsthat underpin our water resources, now and in the future will attain second priority and will be reserved. Other uses

will be subject to social and economic criteria, which will be reviewed from time to time. In implementing this policytwo important capacities are needed. Firstly, is how to determine the water needs for the environment(environmental flow), but also processes to determine water needs for the different other competing uses – includingconsideration of environmental requirements in water allocation and development scenarios, decision supportsystems to assist in making proper choices, and facilitating stakeholder dialogue to arrive at the best choices.Secondly, is the streamlining of environmental water requirements in the water allocation, permitting system,planning and designing and decision making. Additionally, the water infrastructure that are being approved should beable to mimic natural events such floods and droughts.

A recent example is when L. Victoria level went down fisheries were affected, urban W/supply was affected as wellas harbor operations. Hydropower generation was also affected. Uganda they promote IWRM and planning butnotes that what powers is there to force sectors to abide with the plans. Thus participation of the sectors in the whole

process of preparation of the plans is critical. The current preparation of water master plan will allocate water to thedifferent sectors. Climate Change is being taken into account (mitigation and adaptation including ecosystemprotection). In Rwanda a strategy being finalized, noted that there is need to put more focus on natural resourceswhich depend on water and have relationship with water. Discussion in Rwanda indicated that they do not see clear cooperation in issues related to natural resources management and use, as compared to trade, security, andmovement of people have advanced in terms of cooperation. Burundi‟s opinion on IWRM is that there is noframework although there is an IWRM planning currently ongoing, thus a framework is needed on trans boundarynatural resources management. They also note on tools to be able to know water availability and water productivity.The use of appropriate software/tools for planning sustainable decision support system to avoid conflicts andoptimize facility is required. In term of planning there is need to put programmes related rainwater harvesting, dryseason, climate variability which cut across land use and water resource use activities. Collaboration can producecomplementarily for all types of commodities for the benefit of Partner States.

Under the protocol for Sustainable development of Lake Victoria Basin partner States have designated Lake Victoriaas an economic growth zone. The need for increased investment in the field of energy, transport, communication,infrastructure, tourism, agriculture, fisheries, livestock, forestry, mining and other areas of social and economicEndeavour to spur development and to eradicate poverty in the in the Lake Victoria Basin has been stated; and thiscan only be achieved through inter-sectoral cooperation nationally and regionally.

One of the objectives of the protocol is the commitment to ensure the promotion of the sustainable utilisation of thenatural resources of the Partner States and the taking of measures that would effectively protect the naturalenvironment of the Partner States [art. 5(3)(c)]. In order to achieve the objectives spelled out, the Treaty sets outprinciples on which the water resources shall be managed, utilised and developed. In this regard the key principlesas provided in Article 6 are:

Equitable distribution of benefits

Co-operation in mutual benefits

Mutual trust, political will and sovereign equality.

The Shared Vision for Lake Victoria Basin underscores that the need for harmonization, coordination andenforcement of policies and legislative frameworks to support the conservation and management of the ecosystems,natural resources and environment and encouraging collaboration with and promotion of participation and investmentby the public, CSOs and private sectors.



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(ii) Development and management of water resources by river basin approach

In Kenya the water sector has been undergoing thorough reforms since 1992 with the preparation of the NationalWater Master Plan, the formulation of the National Water Policy on Water Resources Management and Developmentin 1999 and the promulgation of the Water Act 2002. The four principles adopted by this policy include the following:

Tanzania’s National Water Policy advocates integrated approach to water resources management, which isparticipatory, multi-sectoral, multi-disciplinary, and based on River Basins, which recognizes that water is a scarceresources and treats it as such, integrates the linkage between land use and water use, water quality and quantity,and recognizes the important role ecosystems play in the sustainable development and management of water resources. These Basins are:

Pangani River Basin Pangani,

Rufiji River Basin,

Lake Victoria Basin,

Wami/Ruvu River Basin,

Lake Nyasa Basin,

Lake Rukwa Basin,

Internal Drainage Basin to Lakes Eyasi, Manyara, Natron and Bubu Complex

Lake Tanganyika Basin, and

Ruvuma River and Southern Coast Basin.

Kenya is managing its water resources by 6 catchment area approach which is similar to Tanzania‟s water basins.These catchment areas are:

Lake Victoria South Catchment Area,

Lake Victoria North Catchment Area,

Rift Valley Catchment Area,

Athi River Catchment Area,

Tana Water Catchment Area,Ewaso Ng‟iro North Catchment Area.

Provision has been made in the present policy of Uganda to create in future catchment level institutions to deal withwater resources management in the respective catchment areas, because in the present context, it has not beenfound necessary to establish catchment level institutions. Meanwhile WRM is central Govt function. However,according WRM principle, there will be decentralization- lower level - Catchment/Zone which are in the process of being created. The Zones are considered important Units of ManagementUganda will send officials to zones startingfrom July 2011. Within each zone There will be catchments or sub-zones where stakeholder will participate at thatlevel. Uganda water Policy is being reviewed but there no major changes are expected.

In Rwanda, the catchment-based approach is widely recognized as essential to dealing comprehensively with water

resources management issues, based on the obvious community of interest for users living within such ageographical area. Indeed water use has impact primarily on users within the same catchment, and vice –versa;including environmental uses. In this connection, water resources institutional and management arrangements oughtto be set up at catchment or basin scale. However, in the Rwanda context with the drive of achieving efficiency,taking advantage of the established administrative set-up, , water resources management processes will be effectedwithin local government administrative entities in terms of planning, programme implementation and water users‟organizations. The operationalisation of the principle of catchment based water resources management will befurther elaborated in the implementation strategy of this policy. Burundi is in the process of preparing National Water Policy and hence catchment management approach is yet to be defined and documented.



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In shared water resources Partner States will plan, develop and manage water resources by adopting ariver basin or watercourse approach. Subsequently, Partner States jointly will prepare and implementintegrated river basin management and development plans with full involvement of affected stakeholders,

promote conjunctive use of surface and groundwater resources.

The plans so jointly developed will be the basis for negotiations of water allocations between Partner Statesbased on agreed based on equitable and reasonable mechanisms, with consideration of the position of theLake Victoria Basin within the wider Nile so as to avoid undue conflicts.

Partner states will ensure that shared water resources and the water uses upon them will be regulatedthrough as a system of water rights/permits applicable at national level as stipulated in the agreedharmonized Regulations .

(iii) Integrated Water Resources Planning approach

Water resources is cross cutting in nature across political boundaries and sectors. It imposes strong challenges andopportunities for cooperation. All the Partner States underscore the importance of integrated water resourcesplanning. This consider the integrated use of surface and ground water resources, the reuse of water, proper pollution management and the provision of environmental requirements. From discussion Burundi Water Policyanticipates inclusion of IWRM as a main planning principle as guided by the Lake Victoria Bain Protocol. RwandaWater Policy notes available water resources of Rwanda will be allocated on the basis of comprehensive andintegrated plans and optimum allocation principles that incorporate efficiency of use, equity of access andsustainability of the resource.


Transboundary water resources planning will be done on the basis of water basins using an integrated

multi-sectoral approach and cross-cutting nature of the resource, involving stakeholders and which willconsider requirements for bio-diversity and human health.

Partner States shall promote joint planning and implementation of development projects and programmeswithin their within their shared watercourses in transparent manner and notify each other and/or engageother watercourse States through agreed dialogue mechanisms, where such other water course States arenot proponents of the projects.

(iv) Water conservation and demand management

In all the Partner States water has been considered a social good and Governments took the responsibility for providing access to services. Present stresses and scarcity call for the adoption of measures to improve efficienciesin water use aimed at making more water available to meet demands. The situation will gradually lead to the need

for measures, such as recycling and artificial recharge, which may provide a local drought-proof source of water. Also, across all sectors, fees for using water have been very low and, thus, there has been little incentive for usingthe resource efficiently or for conserving it, which has resulted in wasteful and inefficient use. All countries haveinstituted charges for using raw water as a measure to increase budget allocated to WRM. Tanzania‟s fee structurealso aims at making the fees as an incentive for efficient use of water.


Partner States will adopt a Demand Responsive Approach to water resources management will be introduced



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through the use of demand management approaches together with water conservation measures as a fundamentalrequirement for integrated planning and management of transboundary water resources.

(v) Development of dams

Tanzania and Kenya‟s policy and legal frameworks have provisions for development of dams and dam safety.

Rwanda, Uganda and Burundi polices do not show similar provisions. Tanzania‟s policy requires that development of large water schemes including construction of dams, large rainfall harvesting schemes, river diversion works, andinter-basin water transfers must meet objectives of water resources management, and will be subject to a permit andan Environmental Impact Assessment (EIA). Provisions for dam safety are also provided in Chapter X of the Water Resources Management Act 2009. This policy an legal frame needs to be in harmony within the riparian states aslarge infrastructure will certainly have significant implications for water management in the downstream and may besource of major conflicts.


Promote integrated planning, development and management of dams in order to optimise the use of thewater resources, maximise derived benefits (such as hydropower, tourism, flood control, irrigation, water

supply) and jointly address both positive and negativeexternalities.

Promote the participation of all key stakeholders in decision-making in the process of dam development.

Partner states will jointly prepare and negotiate on operating rules for dams on shared watercourses with aview of to optimise the socio-economic and environmental benefits in an equitable manner.

(vi) Water allocation and water permits authorization

Regulation of water use in respect of transboundary water resources is important as it serves as the basis for planning and optimising the utilisation of water resources. One of the most fundamental areas to be clarified in anational water policy is how water resources are to be allocated in order to achieve the objectives of equity, efficiency

and sustainability. This is generally achieved through the granting of rights to abstract and use water from publicwater sources, and to discharge wastewater or effluent (of a defined quality) back into public water sources. InTanzania NAWPO 2002 replaces the term “water right” to “water use permit”. Previously water rights were issued inperpetuity. The new policy introduces “water use permits” to be issued for a determined beneficial use” withinspecified duration. If the the system of Water Rights has to be an effective water allocation tool, then the necessitythat water use has the widest possible coverage by formally registered Water Rights can not be over emphasized.

A system of permits, therefore, is necessary to ensure that allocations can be monitored and regulated. Kenya,Uganda and Tanzania water polices and the associated water laws have included regulatory mechanisms for allocating water and monitoring its use. Appropriate and transparent harmonized regulatory mechanisms needs tobe developed and negotiated between the Partner States for implementation at national level considering thefollowing allocation principles:

Water allocation and permitting to take account of the current priorities and future investment intentionsidentified in basin/catchment IWRM plans.

Maximisation of socio-economic benefits while ensuring environmental sustainability.

Equitable distribution of the available water resources.


Promote equal and fair procedures when allocating water so that all social and economic activities are able



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to maximize their capacities. The objective being to realize efficient water uses and conservation whileimproving productivity in all socio-economic activities and maintenance of the environment.

Priority uses on transboundary water courses will be water for basic human needs and for sustaining theenvironment will attain highest priority, followed by water to meet social-economic needs which will besubject to agreed criteria and time to time revisions.

Streamlining of environmental water requirements in the water allocation, permitting system, planning anddesigning and decision making.

8.3.3 Building Block 3: Water for environment and ecosystem sustainability

(i) Water allocation for the environment/sustaining aquatic ecosystems

Sustainability of the environment as well as the ecosystem depends so much on how water is made available to it. In Tanzania theNAWAPO recognize the need for allocating water resources to sustaining the environment and the aquatic ecosystem (section 4.1.2).In Uganda this is well elaborated under sections 4.3.3 (ii); 6.3 (i); 7.4(ii); 8.1(ii) and 8.2. Rwanda water Policy gives the provision of the

above scenario under section 4.3.2; 4.2.1(b) and 4.3.4. In addition even the sector policies recognize the need of allocating water for theenvironment. In Uganda the national fisheries policy under policy statement 8, policy objective 3; the national environmentalmanagement policy under section 3.4 (principle 5) and strategy vii, 3.5 (principle 5) and the national policy for the conservation andmanagement of wetland resources under sections 5.1(first goal), 5.2 (goal 2), 7.1(i) and 7.2(i). In Tanzania the sector policies thataddress this issue include the national fisheries policy sections 3.2, 3.3.6 and 3.3.7; national environmental policy section 48(a-c),national forest policy section 3.0, the national agriculture and livestock policy sections 3.2(b),(f) and 4(a-c). In Rwanda the sector policieswhich have provisions for water allocation for the environment and aquatic ecosystems include national environmental policy section5.2.2 (a), 5.2.2 (b)(i) and 5.3.1(b)(vii); national water supply and sanitation services section 4.10.1 para 2. For Kenya allocation of water for environment and aquatic ecosystem is provided for. The national fisheries policy of Uganda covers this issue under section 8.2.1

Environment and Ecosystem is a big concern in the region. Environmental Flow Assessment (EFA) is important EFAbut there is need to look at vis a vis the cost involved. LVBC can bring countries to look at this process. On On

Climate Change each of the Partner States have been doing alone. LVBC can bring the countries to do it as aregion, especially looking at adaptation issues and on assessing the impact of climate Change on WRM and on water using sectors. Uganda has established environment Force to patrol the environment (nearly 600 people areemployed to do that). Cleaner production is promoted, as well as building partnership with other Agencies, Judges,police. Compliance assistance although they have polluted but are assisted to address the pollution (tax holiday).LVBC can have the role of following up compliance, enforcement.

Necessary to harmonize regulations pertaining to transboundary WR so that we do and plan together an example ison water hyacinth. In Lake Victoria with all the efforts the water hyacinth is still there. We thus need harmonizedlaws, regulations and policies.

In Rwanda there is a strategy for irrigation to address problems of drought and climate Change. There is now

irrigation water plan and a process is ongoing to establish climate change policy. It was also note that a process isongoing at regional level to have climate change policies.

Rwanda is land use consolidating, so people are promoted to use machines, and have policies on fertilizer, seeds,and agrochemical policies which come under land consolidation. On food security master plan and climate changemust be addressed at regional level not country level. This will offset in balance at the EAC level there will foodbalance sheet where deficits and surplus will be known Country –wide. Another issue of high significance is that of land degradation through erosion resulting in sedimentation which is finally deposited at the lake Victoria plus Lossof fertile agricultural land. It was noted that pressure on the land for some countries (like Rwanda) is 300 people per



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hactor. For population of Rwanda it is 1 person for 100sqm. Around 80% of population are farmers.

In Burundi there is regulation that each project must comply to EIA. In terms of harmonization Burundi has no policyon land and water. The President has signed a decree on EIA but there is no policy on Strategic Environmental

Assessment. At national level there is authorization process, which must be followed. For industries there is a codewhich they has to be followed. Cleaner production is promoted to improve the management of waste water which

has implication on water pollution.

The need to differentiate the different ecosystem was emphasized during the preliminary consultation. It was notedthat environmental issues need to be addressed comprehensively including issues related to soil erosion, loss of fertility, water quality, land degradation, etc. Alternative energy source such as bio-gas and bio energy will minimizedependence on natural forests. Agro ecological approach need to be promoted as it will result in getting firewoodwhile at the same time improve soil fertility, and get organic manure. Introduction and promoting terraces on slopewill conserve soil water and improves water infiltration. Thus there is need for good research on these aspects.

Special consideration is needed on Wetlands act as they act as sponges - keep waste in wet season and release indry season; improve water cycle, land productivity provide building material and tradition medicine. They performimportant hydrological fraction, ecological, sociological and environment function. In dry season people move from

u/s area to cultivate in wetland, Therefore you need wetland management to offset poverty. All countries needpolicy, strategy and wetland action plan as part of environment management. For transboundry wetlands Partner States needs one vision one policy and a good transboundry strategy and action plan. Burundi calls for rational useof wetlands and watershed management, and that research is needed to understand and to maintain native species.

Based on the above review in order to ensure proper allocation of water for the environment and aquatic ecosystem the following areneeded

(iii) Establishing mechanisms for effective environmental flow assessment using cost effective approach so asto understand the required minimum flow.

(iv) Establishing mechanisms to assist water allocation for various users putting into consideration sustainabilityfor the environment at regional level

(v) Seriously address alien invasive species

(vi) Effective measures for protection of water sources(vii) Formulate strategies to promote best practices for mitigating climate change impacts



Promote Environmental flow assessment (EFA) as a management tool that can assist the Basin Water Board to meet the challenges of balancing the diverse needs for water between the amount of water thatcan be withdrawn from a river for the different human uses and the amount of water that the river needs to

sufficiently maintain ecosystems through multi-sector approach.





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(ii) Addressing alien invasive species

The increased nutrient loads from sewage, together with other nutrient sources, have resulted in a five-fold increasein algal growth in Lake Victoria, deoxygenation of the lake‟s bottom waters, clogging of the water intake filters,increased chemical treatment costs for urban centers, and localized fish kills. The high nutrient concentrations in thelake waters promoted the growth of water hyacinth, which spread rapidly around the shoreline in 1998, causing

considerable economic loss to fishermen and to ferry operators. The sudden and destructive infestation of water hyacinth in the lake was successfully controlled with assistance from LVEMP I which laid foundation for effectivemanagement of the lake‟s economically important fishery through the Lake Victoria Fisheries Organization.


Partner States will work individually and collectively to control the alien invasive species.

(iii) Water source protection

In order to enhance availability of water for the environment and ecosystem sustainability protection of water sources is very critical. Thenational water policy for Uganda addresses this issue under section 6.4.5 (vii) and under section 3.5(ii) of the National Environmental

Management Policy of Uganda. and section 7.5(i) of the National Policy for the conservation and management of wetland resources. InRwanda protection of water sources is stipulated under section 4.3.1 (c) while in Tanzania is under sections 4.2 and 4.4.2. Protection of water sources is also addressed by the sector policies. For instance in Uganda, the national land policy protection of water sources isstipulated under section, 1.4.2(g), the national environmental management policy under section3.5(ii) and the national policy for theconservation and management of wetland resources section7.5(i). Sector policies in Rwanda that address the issue of protection of water sources include national forest policy section 4.8, national environmental policy sections 5.2.2(b)(ii) and 5.2.3(b)(v), national landpolicy section 4.1(b), national water supply and sanitation services section 4.10.1 para 2 and 4.




(iv) Climate change

Climate change is an issue of concern on its impact to availability of water and the sustainability of the environment and aquaticecosystem. Concerted measures have to be taken to strategize on mitigation measures. East Africa, like many other regions of theworld, is is prone to extreme meteorological events, being susceptible to severe droughts and extreme floods. Humanactivities and global warming is recognised as exacerbating these natural disasters, with the related consequenceson people‟s quality of life and the environment. The effects of climate change may be especially critical to theachievement of development objectives related to the most vulnerable groups and communities in the region. Theprojected impact of climate change on access to natural resources, heat-related mortality and spread of vector-borne

diseases such as malaria, for example, has direct implications for the achievement of several of the MillenniumDevelopment Goals. In Tanzania this issues is stipulated under section 4.8.2 of the NAWAPO while Rwanda Water Policy givesthis provision under section 4.3.1(d) and 4.3.3 (d). Section 6.2 of the Uganda national water policy addresses this critical issue. Theissue of climate change is also addressed by sector policies. In Uganda, the national land use policy section 1.4.1(j) and the nationalenvironmental management policy section 3.10 while in Rwanda the national environmental policy section 5.2.2(b)(iii and vii) and theRice Policy addresses the aspect of climate change. In Tanzania only the national irrigation policy touches on addressing climaticchange issues.



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Develop capacity, Human resources and Institutional level, to cope with climate change and extremeevents, including climate change analysis is included in planning for developmentprojects/programmes.

Promote science-policy dialogue to communicate research findings on climate change.Focus on water security, which requires sound water resources management and development,balance between hard and soft strategies, manage demand as well as increase supply and encouragerainwater harvesting.


8.3.4 Building Block 4: Water Quality Management and Pollution Control

(i) Water allocation for the environment/sustaining aquatic ecosystems

Sustainability of the environment as well as the ecosystem depends so much on how water is made available to it. In Tanzania theNAWAPO recognize the need for allocating water resources to sustaining the environment and the aquatic ecosystem (section 4.1.2).In Uganda this is well elaborated under sections 4.3.3 (ii); 6.3 (i); 7.4(ii); 8.1(ii) and 8.2. Rwanda water Policy gives the provision of theabove scenario under section 4.3.2; 4.2.1(b) and 4.3.4. In addition even the sector policies recognize the need of allocating water for theenvironment. In Uganda the national fisheries policy under policy statement 8, policy objective 3; the national environmentalmanagement policy under section 3.4 (principle 5) and strategy vii, 3.5 (principle 5) and the national policy for the conservation andmanagement of wetland resources under sections 5.1(first goal), 5.2 (goal 2), 7.1(i) and 7.2(i). In Tanzania the sector policies thataddress this issue include the national fisheries policy sections 3.2, 3.3.6 and 3.3.7; national environmental policy section 48(a-c),national forest policy section 3.0, the national agriculture and livestock policy sections 3.2(b),(f) and 4(a-c). In Rwanda the sector policieswhich have provisions for water allocation for the environment and aquatic ecosystems include national environmental policy section5.2.2 (a), 5.2.2 (b)(i) and 5.3.1(b)(vii); national water supply and sanitation services section 4.10.1 para 2. For Kenya allocation of water

for environment and aquatic ecosystem is provided for. The national fisheries policy of Uganda covers this issue under section 8.2.1

It was noted during preliminary discussion in Uganda that, the country has a number of industries around LakeVictoria which results in has effluents that are discharged into the lake non-treated or partially treated. This affectspopulation even Ugandans themselves who are depended on lake water for the fishery etc. It is strongly requiredthat the effluents are treated to acceptable levels in order to protect the health of the people. It was noted stronglythat Industrial effluents have direct national and regional implications. Industry sector is not competing with other sectors there is a lot of water. North Eastern part of Uganda which is dry is dry are so there be competition in future

Based on the above review in order to ensure proper allocation of water for the environment and aquatic ecosystem the following areneeded

(viii) Establishing mechanisms for effective environmental flow assessment using cost effective approach so as

to understand the required minimum flow.(ix) Establishing mechanisms to assist water allocation for various users putting into consideration sustainabilityfor the environment at regional level

(x) Seriously address alien invasive species(xi) Effective measures for protection of water sources(xii) Formulate strategies to promote best practices for mitigating climate change impacts



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Promote Environmental flow assessment (EFA) as a management tool that can assist the Basin Water Board to meet the challenges of balancing the diverse needs for water between the amount of water thatcan be withdrawn from a river for the different human uses and the amount of water that the river needs tosufficiently maintain ecosystems through multi-sector approach.



(ii) Addressing alien invasive species

The increased nutrient loads from sewage, together with other nutrient sources, have resulted in a five-fold increasein algal growth in Lake Victoria, deoxygenation of the lake‟s bottom waters, clogging of the water intake filters,increased chemical treatment costs for urban centers, and localized fish kills. The high nutrient concentrations in thelake waters promoted the growth of water hyacinth, which spread rapidly around the shoreline in 1998, causingconsiderable economic loss to fishermen and to ferry operators. The sudden and destructive infestation of water hyacinth in the lake was successfully controlled with assistance from LVEMP I which laid foundation for effectivemanagement of the lake‟s economically important fishery through the Lake Victoria Fisheries Organization.


Partner States will work individually and collectively to control the alien invasive species.

(iii) Water source protection

In order to enhance availability of water for the environment and ecosystem sustainability protection of water sources is very critical. Thenational water policy for Uganda addresses this issue under section 6.4.5 (vii) and under section 3.5(ii) of the National EnvironmentalManagement Policy of Uganda. and section 7.5(i) of the National Policy for the conservation and management of wetland resources. InRwanda protection of water sources is stipulated under section 4.3.1 (c) while in Tanzania is under sections 4.2 and 4.4.2. Protection of water sources is also addressed by the sector policies. For instance in Uganda, the national land policy protection of water sources isstipulated under section, 1.4.2(g), the national environmental management policy under section3.5(ii) and the national policy for theconservation and management of wetland resources section7.5(i). Sector policies in Rwanda that address the issue of protection of water sources include national forest policy section 4.8, national environmental policy sections 5.2.2(b)(ii) and 5.2.3(b)(v), national land

policy section 4.1(b), national water supply and sanitation services section 4.10.1 para 2 and 4.






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(iv) Climate change

Climate change is an issue of concern on its impact to availability of water and the sustainability of the environment and aquaticecosystem. Concerted measures have to be taken to strategize on mitigation measures. East Africa, like many other regions of theworld, is is prone to extreme meteorological events, being susceptible to severe droughts and extreme floods. Human

activities and global warming is recognised as exacerbating these natural disasters, with the related consequenceson people‟s quality of life and the environment. The effects of climate change may be especially critical to theachievement of development objectives related to the most vulnerable groups and communities in the region. Theprojected impact of climate change on access to natural resources, heat-related mortality and spread of vector-bornediseases such as malaria, for example, has direct implications for the achievement of several of the MillenniumDevelopment Goals. In Tanzania this issues is stipulated under section 4.8.2 of the NAWAPO while Rwanda Water Policy givesthis provision under section 4.3.1(d) and 4.3.3 (d). Section 6.2 of the Uganda national water policy addresses this critical issue. Theissue of climate change is also addressed by sector policies. In Uganda, the national land use policy section 1.4.1(j) and the nationalenvironmental management policy section 3.10 while in Rwanda the national environmental policy section 5.2.2(b)(iii and vii) and theRice Policy addresses the aspect of climate change. In Tanzania only the national irrigation policy touches on addressing climaticchange issues.


Develop capacity, Human resources and Institutional level, to cope with climate change and extremeevents, including climate change analysis is included in planning for developmentprojects/programmes.

Promote science-policy dialogue to communicate research findings on climate change.

Focus on water security, which requires sound water resources management and development,balance between hard and soft strategies, manage demand as well as increase supply and encouragerainwater harvesting.


8.3.5 Building Block 4: Water Quality Management and Pollution Control

(i) Water quality monitoring and assessment

Water quality is one of the critical issues that need great attention with regard to formulation of water related policies. Water quality statuscan be established if there is a monitoring and assessment mechanism in place. Existence of water quality standards assists inmonitoring and assessment process. The national water policies of East Afica community states take into account this issue to someextent. For instance the Tanzanian National Water Policy provides provision for undertaking water quality monitoring and assessmentunder section 4.2.2; 4.4.1 and 4.5. Sections 3.2; 6.2(i) and 6.4.1 of the Uganda National Water Policy stipulate the need of carrying outwater quality monitoring and assessment. However, the National Water Policy for Rwanda does not take into account this issue.


Water quality monitoring and assessment will be undertaken systematically so as to identify extent and status of thequality of the transboundary water resources so that problems are detected early and remedial actions taken timely.

(ii) Water quality standards (receiving water quality standards, effluent discharge standards)



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With regard to water quality standards the reviewed water policies indicate that existence of water quality standards particularly for receiving water quality standards and effluent discharge standards have been to some extent addressed. For instance UgandaNational Policy gives provisions for this under sections 6.3(iii); 7.2 and 8.5.3(ii) while Rwanda National Policy stipulates this under section4.3.4(a). For Tanzania, NAWAPO has provision on this under section 4.2(i)(a) and 4.5. Water quality standards vary fromcountry to country in the Lake Victoria Basin. The maintenance of these national standards is generally constrainedby lack of material, human resources and financial capacity. There is a study going on to harmonize the standards.


Member States uphold common minimum standards of water quality in shared watercourses and poolavailable resources for their maintenance.

Promote Environmental Impact Assessments (EIAs) for projects planned to utilize on transbounary water resources.

Partners States shall avoid importation of pollutants from other countries into the region for disposal.

(iii) Water pollution control

Water quality management and pollution control one of the core functional responsibilities for water resourcesmanagement and is provided for in NAWAPO and WRM Act. The water quality and pollution problems within thecountry have generally changed to some extent at some areas in accordance with population growth, urbanization,industrial development including mining. Pollution may seriously affect availability of the already scarce water resources for various uses including environmental sustainability. Water quality standards and legislation together with water quality monitoring are used as administrative means for water resources management.

The impact of water pollution on water quality is well known and thus efforts to address this problem need to be effective. Controllingwater pollution is recognized in all reviewed water policies. For example, Uganda water policy under section 2.2 and 4.3.3 (vi) andRwanda water policy under section 3.3 (para 2) emphasizes controlling all economic activities which can pollute water resource andadvocate use of polluter pays principles. The NAWAPO addresses this under section 4.8.2 and 4.8.4

In order to enhance water quality management and pollution control at regional level the following need to be in place:

(i) Measures to control pollution for transboundary water resources need to be formulated and or strengthened(ii) Encourage cleaner production(iii) Establish mechanisms for applying polluter pays principle.(iv) Use of appropriate technology that ensure sustainable industrial development(v) Measures to enhance compliance to the set water quality standards.

The Uganda Water Policy has explicit provisions for management of wastewater discharges and regulation andestablishes a permit system as a permanent national function under the DWD. This arrangement is largely due tothe fact that the function which requires detailed technical expertise and the need to adherence to international andnational standards. The policy also recognizes that there are increasing cases of water quality degradation causedby both natural and human factors. The deterioration of the water quality of Lake Victoria is attributed to the directindustrial and municipal waste discharges which has also lead to the spread of water hyacinth.

The Tanzania National Water Policy notes that environmental degradation and pollution of water sources fromincreasing discharge of untreated and partially treated municipal and industrial wastewater contribute to thedeterioration of the quality of the water resources. The policy recognizes that pollution from point and non-pointsources of water resources is responsible for the deterioration of the quality of water, makes water unusable and itstreatment very costly. It also notes that increased human activities including poor land use practices, as well asuncontrolled abstractions and pollution of water bodies impact on the quantity and quality of the available water



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resources. Then proliferation of water hyacinth in Lake Victoria, and in some rivers and reservoirs, is a result of highnutrient levels. Measures stipulated in the policy include water quality monitoring and assessment to be undertakensystematically, conjunctive assessment of quality and quantity of water resources, application of “ polluter pays” principle, development and implementation of practical and cost effective water quality and pollution controlmonitoring programs (including networks) will be developed and implemented. Factories, municipal authorities, largeirrigation schemes and mining operations will be required to collect and keep accurate records of the quality of

effluents into receiving water bodies.

Water quality management and pollution control one of the core functional responsibilities for water resourcesmanagement and is provided for in NAWAPO and WRM Act. The water quality and pollution problems within thecountry have generally changed to some extent at some areas in accordance with population growth, urbanization,industrial development including mining. Pollution may seriously affect availability of the already scarce water resources for various uses including environmental sustainability. Water quality standards and legislation together with water quality monitoring are used as administrative means for water resources management.

Rwanda‟s draft water policy: The present water resources policy calls for appropriate actions to improve catchmentmanagement whose effect would be enhanced protection and conservation of forests as a measure to contribute tothe water pollution control.


Creation of public awareness in the importance of protecting water resources from pollution including thatresulting from point and non-point sources.

Practical and cost effective water quality and pollution control monitoring programs (including networks) willbe developed and implemented.

Factories, municipal authorities, large irrigation schemes and mining operations will be required to collectand keep accurate records of the quality of effluents and submit the same to relevant water managementinstitutions.

The "polluter pays” principle shall apply in conjunction with other legal and administrative measures.

8.3.6 Building Block 5: Security from water-related disasters

(i) Protection from floods and droughts

Security from water-related disasters under this review included three mains aspects. These are protection from floods and drought;prediction, planning and management of natural disasters and provisions for dam safety management. The National water policy for Uganda addresses the issue of protection from floods and droughts under section 8.1(v) while that of Rwanda is under section 4.3.1(g).

Section 4.8.2 of the National Water Policy for Tanzania stipulates the needs of having flood mitigation plans. Protection from droughtrelated disasters is addressed to some degree in all national water policies under review. The East African countries are prone toextreme meteorological events, being susceptible to periodic but severe droughts and extreme floods. Humanactivities and global warming is recognised as exacerbating these natural disasters, with the related consequenceson people‟s quality of life and the environment. Management of floods and droughts is and protection of people andproperty is a fundamental function of Partner States‟ governments.

Safety on the lake is another critical factor that needs to be harmonization to protect life and property. It was noted



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that in North Eastern part of Uganda which is dry is dry are so there be competition in future. Uganda is in final stageof preparing flood management Strategy will be integrated into the Zones for implementation. Uganda is in theprocess of development its framework for management of natural disasters, which have been a result of poor catchment management and on going degradation. Rwanda informed that it is implementing Early Warning Systemwhich focuses on focusing on floods and droughts is being implemented in Rwanda. It was recommended that thereis need to have same system in all countries which has to be linked regionally. Also recognize is the need for

information sharing and harmonization, and sharing on climate change which has no boundaries, and floods anddroughts, and pollution control among others.


Facilitate and coordinate the management of natural disasters associatd with transboundary water resources.

Member States shall commit themselves to protect human life, livestock, property and the environmentagainst the effects of water related natural and human-induced disasters.

Promote the development and implementation of Early Warning System for floods and droughts for nationaland regional use.

(ii) Prediction, planning and management of natural disaster management

With regard to the issue of prediction, planning and management of natural disasters, the review of water policy indicate inadequateattention to this issue. However the National Environmental Policy for Uganda under section 3.10(strategy viii) and the nationalenvironmental policy for Rwanda under section 5.4(a)(i), 5.4(b)(i-iv) addresses in detail this aspect. In Tanzania the National disaster management policy is very comprehensive on this issue where sections 2.1.1 to 2.1.5 set various mechanisms for prediction, planningand management of natural disasters.


Prepare an implement effective regional and watercourse strategies to improving the region‟s capacity inpredicting water-related disasters associated with floods and droughts.

Develop disaster preparedness responses measures at regional level for dealing with floods and droughtdisasters.

Develop a framework that can enable early warning, prediction, planning and management of water relatednatural disasters and have contingency plans and resources available to minimize the impacts.

Flood and drought monitoring stations and early warnings systems will be established so as to detectprospective floods and drought occurrences and disseminate information to the public in advance. Floodand drought control infrastructure, including dam safety measures, will be promoted, as will measures for impact mitigation against water resources pollution from accidental chemical pollution.

Partner states State have an obligation to notify and share knowledge and information with affectedwatercourse States in the event of actual or pending water related disasters.

(i) Provisions for dam safety management

The National Water Policy for Uganda addresses the issue of dam safety management under sections 6.4.7(i), 6.4.7(iv) and 6.5(ii).While that of Rwanda and Tanzania have provisions on this issue. Tanzania has already included this aspect in its Water ResourcesManagement Act and draft regulations are in approval process. Tanzania national disaster policy also has provisions for dam safetymanagement under section 2.1.1(i-ii). The National Environmental Management Policy for Uganda section 3.9(xiii) and the TanzaniaNational Human Settlements Development Policy Par 3.3.2 sect vi to some extent addresses the issue of dam safetymanagement.



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(i) Develop strategies for enhancing dam safety management.(ii) Strengthen capacity for dam safety management through development of appropriate safety

guidelines and institutional capacities for enforcement of the guidelines.

(iii) Comprehensive and objective assessment of the economic, social, and environmental impactswould be carried out and adequate mitigation measures put in place for implementation at regionaland national levels.

8.3.7 Building Block 6: Water resources information, management and exchange

(i) Data collection and information management

Water resources assessment of both surface water and groundwater, quantitatively and qualitatively, is afundamental element of the water resources planning. The assessment is currently inadequate and is weakenedby a lack of unified information bases at both basin and national levels. Rwanda draft water policy sites existence

of weak data collection and research to support water resources related planning and development, as well as lackof data and information exchange mechanisms between regional river basin riparian countries. Tanzania policynotes that presently, the hydrometric, water use and water quality information base is poor. The data collectionnetworks are in a state of near total collapse due to lack of adequate resources and tools, but the situation isgradually improving through ongoing intervention by the Water Sector Development Programme. Ugandarecognizes that data and information is the key to rational and optimal management and use of water resources.Within East Africa region there is need to focus on harmonising and consolidating the information base to supportintegrated water resources management and development of transbondary water resources.

In Uganda it was the opinion that under the LVBC there has to be a framework to remind countries that whatever plans are made or need o prepared then data and Information is a critical starting point. Thus a minimum level of data collection network is needed to cater for region needs to address, among others:

Pollution issues

Water issues

Water resources issues

Water allocation issues

Early warning of disasters

There is also need to standardise data collection and management procedures. Confidence and trust is important toachieve effective regional data and information management and exchange. It was strongly felt that cooperation willnot move if you don‟t trust each other. It is a matter of Give and Take.

Rwanda: noted that there is need to promote information sharing through Internet, Websites need to be promoted .

It is of benefit to some specific regional news on the website. Knowledge management strategy must be built in theregion, to share and to be profitable for the region. The better way to learn is to share experiences, so that you canlearn by doing and avoid wasting resources. Burundi noted that at national level there is need to establish a nationalworking group which collects information and communicates to national and regional stakeholders. Burundi plans toset up a national water resources institution which can play coordination role. Currently transboundary WRM is agap.




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Partner States will strengthen existing system of data collection, processing, storage and dissemination of various transboundary water resources data. Data quality Control will be an integral part of the datamanagement system.

Strengthen the the operational capacity for data collection, management of information and assessment of water resources on the basis of simplified, practical needs of the basin.

Promote information sharing through internet, websites need to be promoted. Some specific regionalinformation and news can be posted on the website on a regular basis. As well, knowledge managementstrategy must be prepared for the benefit of the region.

(iii) Data and information exchange

The Nile Bain Initiative – Water Policy Guidelines and Compendium of Good Practice has shown that informationexchange with stakeholders is enhanced by the following principles:

Appropriateness: Providing information that is relevant to the IWRM task at hand has been tested in the fieldand rigorously proven through research and development. Information must also be applicable to the type of

problem, the level of institutional capacity and the technical ability of the practitioners. If capacity is lacking,special efforts will be needed to facilitate information exchange. Internet-based information is key but where itis not easily accessible, alternatives must be used.

Accessibility : It is important to build on the current capacity of practitioners rather than to require major upgrades in individual or organisational or technical ability.

Equity : Information exchange should respect cultural needs and gender issues, and take care not todiscriminate against users or providers because of their remote locations.

Lessons from broadening participation in IWRM: Involving women in water project planning is a powerful way of transforming social gender roles, resulting in more sustainable projects.

Experience has shown that projects that involve disadvantaged and previously overlooked groups (such as womenand indigenous groups) in planning and decision making are implemented faster, with fewer problems and with lesscostly maintenance once operational. The level of participation should take the form appropriate to the scale of theproblem or service in question.

Currently there is no data and information sharing protocol yet although there is some form of data sharing. Thewater release and abstraction policy it is a mathematical equation, but a policy that also looks at how this beorganized is required.


Establish of an effective system of local and international exchange of information will be strengthened, witha view to increase knowledge and experience, efficiency, and collaboration.

Promote timely sharing of relevant available information and data regarding the hydrological, hydro-geological, water quality, meteorological and environmental condition of shared water resources.

(v) Water resources assessment

One of the biggest challenges of the water sector in Tanzania has been a clear understanding of the available water resources for fair, transparent and equitable water allocation. NAWAPO requires that water resources assessment



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will be based on sound scientific and technical information and understanding. It will define the status of surface andgroundwater resources in terms of quantity and quality and use on the basis of water basins and aquifer boundaries;and the information will be made readily accessible to users, stakeholders and decision makers. Water sector staff training should facilitate effective water resources assessment and monitoring and sharing that knowledge throughvarious means. Good quality data is essential for water resource planning and management.


Promote establishment and cooperation in establishment of efficient hydrological, hydrogeological andmeteorological data acquisition and dissemination systems related to transboudary water resources.

Strengthen the capacity of national and regional hydrological agencies capacities for data analysis,information management and dissemination.

Adopt compatible systems for transboundary water resources data and information acquisition andmanagement.

6.4.8 Building Block 7: Institutional framework for water resources management

(i) Structure and systems of management at national level (including river/water basin structures)

Existing national institutional frameworks have been detailed in chapter 3. All national frameworks promotedecentralised management of water resources to either basin/catchment, district, and local government levels as isdone in Rwanda. Uganda is moving to establish management Zones which are similar to Basin or catchmentadopted by Kenya and Tanzania. The current basin and other national level institutions have no institutionalizedworking relations among them. All the Partner States consider water resources planning and management to be acentral part of government responsibility. This view is consistent with the international consensus that promotes theconcept of government as a facilitator and regulator, rather than an implementer of projects. There is need to put inplace a framework and structure for conflict resolution mechanisms and ensure stakeholders participate. It was feltthe Decision Support System (DSS) is an important tool towards cooperation and informed decision. It meansinformation, science openness, science, cooperation and hence research and capacity building.


Promote decentralised the management of water and the associated authority to the lowest appropriatelevel, while maintaining appropriate institutional arrangements for the management of shared watercourses.

Promote appropriate institutional arrangements to enhance the stakeholder participation, gender in takingdecisions on planning and management of transboundary water resources at national and local.

Promote framework and structure for conflict resolution and ensure stakeholders participation. Developscientific tools for conflict resolution backed with appropriate training.

(iii) Proposed Monitoring and Evaluation system

Monitoring and evaluating is a necessary tool to assess achievement of water resources management policyimplementation. A regional monitoring and evaluation system in shared watercourses would be coordinated by theLake Victoria Basin Commission. In water resources management, below proposed indicators draw from the 2005World Bank Report No. 32877 titled, “Lessons for Managing Lake Basins for Sustainable Use”. The indicators focuson strengthening institutions for IWRM, which are mainly:

Process indicators – WRM legislations, regulations and treaties; WRM institutions at the national, basin, sub-catchment and Water User level, water resources information, sustainable financing for water resources



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management - the enabling elements for improving river basin and lake basin management institutions.

Stress reduction indicators - such as improved water use efficiency and protection of watersheds and thepreparation of integrated water resources management plans.


Partner states will promote the establishment and implementation of a transparent and independent monitoring and evaluation systemfor policy implementation in order to assess achievement of its development goals, objectives, strategies, programmes andinstitutional performance for transboundary water resources.

8.3.9 Building Block 8: Stakeholder participation, awareness creation and capacity building

(i) Mechanisms for stakeholder participation at national level and regional levels

Access to natural resources invariably involves competing uses and, therefore, the potential for conflict and the needfor effective conflict resolution mechanisms at national and transboundary levels. Thus, involvement of allstakeholders is critical. People will only take ownership (or “buy into”) a system if they are assured that it is fair,effective, efficient, accountable, transparent, and sustainable. Historical distrusts among stakeholders and ripariansmust be overcome. National and local customs and norms need also to be respected.

Stakeholder participation is a pre-requisite for effective and sustainable integrated water resources management anddevelopment in both national and transboundary basins. Adequate involvement and participation of stakeholders inplanning, management and decision making at all levels, on issues related to water resources management anddevelopment need to be strengthened.

The international principle on water and sustainable development, (Dublin Statement, UNCED and Rio Agenda 21),which is adopted by NAWAPO provide the following guiding principle:

Water management and development should be based on a participatory approach, involving users,planners, and policy makers.

Women play central role in the use, management and protection of water resources and thus should beinvolved fully in the decision making process.


To ensure appropriate mechanism for stakeholder participation the following policy need consideration:

Promotion of effective conflict resolution mechanisms at national and transboundary levels in which

stakeholders will have a role to its development and implementation.Involvement and participation of stakeholders in planning, management and decision making at alllevels.

(ii) Existing capacities for participation in water resources management at national level

The core to successful water resources management lies on building the knowledge, skills and institutional base atthe national, basin and local level to utilize the relatively new and multi-disciplinary tools of integrated water



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resources management. With the advent of the present approaches to water resources management, whichemphasize integration of sectors, comprehensiveness, participation and subsidiarity, and which treat water as both asocial and economic good, the requirements for knowledge and skills now go beyond the traditional skills of hydrology and engineering to include economics, law, environmental and the social sciences, and skills for water conservation and water demand management. Also, specific tools such as River Basin Modeling and DecisionSupport Systems, as well as strategies for communicating and engaging with communities and stakeholders, are

now essential.

To build that kind of knowledge and skills to water sector staff will entail consideration of what are really thechallenges that we want to address in the sector.

The main objective of Capacity Building needs to identify and prioritize water resources related capacity buildingneeds of the relevant national and regional institutions and stakeholders in relation to transboundary water resourcesand to recommend appropriate intervention measures required to address these needs.

Specific objectives to address the transboundary dimension capacity needs would be:

to carry out a capacity needs assessment

to identify appropriate capacity building activities;to recommend a comprehensive strategy for implementation including monitoring and evaluationmechanism;

to outline a programme for capacity building.

Institutions targeted for capacity building comprise of all water related institutions and agencies at regional, national,basin, local governments and village councils levels. Capacity Building Implementation Strategy will include humanresources development to focus on capacity needs based on new approaches to water resources management,which emphasize the integration of sectors, participation, comprehensiveness, and subsidiarity, and which treatswater as having both social and economic values. Strengthen Training Institutions for IWRM will enable thesetraining institutions to output new generation of well trained and skilled IWRM experts.


To ensure effective capacity building for water resources management the following policy may be considered:

Capacity building needs of regional and national intuitions will be identified and prioritized with a viewto recommend appropriate intervention measures required to address these needs based on newapproaches to water resources management which emphasize the integration of sectors, participation,comprehensiveness, and subsidiarity.

Regional and national training institutions capacity will be strengthened to offer appropriate courses for new generation of well trained and skilled IWRM experts at national and regional level.

(i) Gender Mainstreaming for water resources management

It has been shown in section that gender mainstreaming in water resource management is one of key issues whichneed great attention. This is due to the fact that without deliberate efforts men and women will continue to haveunequal access and control over water resources.




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To ensure that both women and mane are active participants in all aspects related to management the followingpolicy need to be considered:

Gender mainstreamed in water resources use and management through capacity building, institutionalstrengthening and affirmative action in the composition of various groups in institutions related to water resource management.

Ensuring that all units and all personnel within the system have the responsibility for ensuring involvement of both men and women in all aspects of programmes and policies on transboundary water resources.Incorporating gender concerns into the planning and decision making, and promotion of process.

8.3.10 Building Block 9: Research and Development

(I) Demand-Driven Water Related Research and Technology Development

Tanzania’s National Water Policy underscores that integrated water resources management is a complex process,which takes into account environmental, ecological and socio-economic concerns in the planning and managementof the resource, aimed at solving the problems of supply, demand and control. There is no explicit mention of research in the Uganda policy. It further notes that very little research or identification of low cost technologies isdone and is not sustainable, and there is lack of sectoral coordination, and research findings are not disseminated tousers. The policy stipulates measures to promote research.

During discussion in Uganda it was highlighted that there are two projects being done at regional level by theUniversity of Dar es Salaam and Makerere University under the auspices of LVBC. However current researches arenot based on agreed policy, they are implemented as projects per need. It was also noted that capacity buildingthrough specialized training is essential in order to develop regional capacities to undertake research, and thatresearch and ongoing capacity building is important. In Uganda a WR Institute is being established, which willpromote applied research and train people to implement IWRM. Rwanda emphasized on coordination of research, aclear plan for research on complementary basis between Partner States to optimize available funds, and sharing of reserach findings. Burundi emphasised need for understanding quantity and quality and how this water is beingused now and future. Thus Research must be a daily activity and government should be positive and allocateadequate funds for the purpose. From discussion Burundi was of the view that the region can promote water foot

print theory. That is, instead of every Partner State producing everything, one country can produce specified goodfor others. In this way water can be saved by one country for use by others.


Adopt effective and efficient demand-driven water sector research and technology development in theRegion and promote the use of research outcomesStrengthen existing national and regional individual researchers and research institutions, and improvedcommunication and collaboration between research institutions.

Promote publication, dissemination and implementation of research findings

Promote complementary production of goods among Partner States.

8.3.11 Building Block 10: Financing integrated water resources management

(i) Sources of funds for water resources management

All countries recognize the importance of sustainable financing for water resources management. Expenditure for



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the recurrent costs of water resources management has been derived primarily from two sources. Firstly, theGovernment exchequer provides funds through budgetary allocations to the Ministry responsible for Water and,secondly, through charges for water abstractions, effluent discharge; government subsidies and donor supports tospecific areas of water resources management. The constraint of inadequate resources has resulted into poor performance of variety of technical, administrative and legal activities, as well as deterioration of infrastructure for continuous water resources data collection, which are important for water resources management.

Financing is a key to effective WRM, which can look at the following points:

Charges of using water

Look at Financing strategies which can be sustained

Countries can have policies on general research by Region needs targeted research

It was expressed during preliminary discussion that financing the interventions for transboundary water resourcesmanagement is not coordinated. The only coordinated effort is LVEMPI and II. WRM is much relying on externalfunds, which is somehow not always forthcoming. It was also felt that at regional level the states contribute to EAC,these contribution should include funds for water resources management of Transboundary significance. Externalfinancing can come to support this e.g building information systems. It was felt that there is need to promote theestablishment of Regional Environment Trust Funds.

It is important to recognize the links between, for example, Regional bodies supporting WRM eg. financing agriculturewater use efficiency which depends on water will in turn support WRM financing. Payment of ecosystem services eg.tourist, navigation, fishing, is benefiting from quantity and quality of water Therefore there is information in the regionwhich needs to be harmonized eg. Climate change which has no boundaries.

Drought information, Flood information can be shared. So there are things which govt can finance and others through joint initiatives. This may include WRM and Pollution Control.

generating money but are benefiting from WRM. So they should pay for maintaining WRM.

Government has to priorities these issues, it is ownership issues, lobby for international donors for transboundaryprograms [need to demonstrate benefit and sustainability.

In terms of implementation of laws there is weak enforcement, and there is room to improve the governance of water and environment governance.

The finances so collected are used to meet the cost towards water resources management and regulatory functions

which include the following:

(i) Water abstraction regulation(ii) Wastewater discharge regulation(iii) Monitoring, assessment and forecasting(iv) Watershed management(v) Enforcement

(vi) Mediation(vii) Capacity building


Partner states will ensure the collection of adequate fees/charges from water abstraction and use of transboundarywater resources for economic purposes, as will the discharge of effluents. The level of abstraction and dischargecharges and the criteria to be used in setting such charges will be subject to regular review and approval based oncriteria and guidelines established by Partner States. The funds so generated will be used by the Partner States for



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water resources management in their respective countries. Special cconsideration will be given to requirements of the poor and the vulnerable.

(ii) Financial Sustainability for water resources management

Almost all the organisations implementing international water agreements in Africa lack adequate funds to go about

their business. Contracting States must therefore realise that international water agreements like national statutesrequires adequate funds for their implementations and therefore such funds must be catered for in their annualbudget so as to provide regular budgets to the organisations or have provisions that authorises the Executive organof the Organisations to implement user pays principle in addition to polluter pays principles to secure sufficient fundswithin the sector for its implementation. Donor's funds should only be relied upon for specific development but not for operation and maintenance of the Organisation just as in the same way the national governments operates andtherefore should not be expected to funds itself or left at the mercy of donors.

Currently, there is financing, and in order to close it the level of user fees collection must be increased through billingefficiency, raising the collection efficiency; enhancing payment practice through better enforcement mechanisms; andthrough review of water user tariffs. There is the potential to increase both water use efficiencies and water feerevenues if the water user fee structure is properly designed and more accurately reflects the real economic value of

water to particular uses in each transboundary basin.


Partner States will determine the criteria and guidelines for transboundary water resources managementbased on:

(i) Evaluation of economic value of water resources –rivers, lakes, swamps/major wetlands, andsensitive catchment areas where competition for scarce water resources is apparent; whichwould support economic water allocation principle.

(ii) Determination of financing needs for water resources management and development for allwater using and water impacting sectors at all levels-national (and trans-boundary), catchment,

sub-catchment and user levels.Financing needs for water resources development (WRD) may include investments ininfrastructure (for flood control, hydropower generation, irrigation, urban and rural domesticwater supply, industrial and livestock water supply, sanitation and sewerage, industrialwastewater treatment, etc) and associated institutions. Financing needs for water resourcesmanagement (WRM) may include institutions, systems and infrastructure for allocating water,controlling pollution and managing water quality, and protecting water resources at the basin,national and trans-boundary levels.

(iii) Financing sources

A study to determine financing sources for transboundary water resources would be required to determine - the fullcost – associated with implementing the various mandates (roles and responsibilities) of all multi-sectoral water management institutions at all levels – national (and trans-boundary), basin, catchment (and sub-catchment) anduser levels – for managing and developing the nations water resources. The determination of the full cost of water can be done under the assumptions regarding phases of institutional development and the level of infrastructureinvestment and development.

8.4 Follow up actions

The following will be done after



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(i) Draft Harmonized laws and regulation will be finalized after agreeing on the main features of the draftpolicy statements in this report and will be presented with the Draft Policy.

(ii) Draft MOUs/Agreements for collaboration in the management of transboundary water resources will be finalized after agreeing on the draft policy statements and some of the main elements of Draft Laws and Regulations.

(Iii) Action Plan for the implementation of the proposed Policies, Laws and Regulations will be prepared after agreeing

on the draft policy statements.(iv) Stepwise process and timeframe for transformation from present situation to future situation(v) Financial resources needed for the implementation of the proposed harmonised policies, laws and

regulations



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EAC Secretariat 2002: The Treaty for the establishment of the East African Community.

EAC 2003: The Vision and Strategy Framework for Management and Development of Lake Victoria Basin,Main Report.

The Republic of Uganda 2008: National Industrial Policy. Ministry of Tourism, Trade and Industry

The United Republic of Tanzania, 2010: The National Irrigation Policy. Ministry of Water and Irrigation

The Republic of Uganda, 1999: National Water Policy

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Republic of Kenya, 2009: Lake Victoria North Catchment Area Management Strategy. Water ResourceManagement Authority

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Nile Basin Initiative, 2007: Development of a Kagera River Basin Transboundary Cooperative Frameworkand Management Strategy in Four Riparian Countries of Burundi, Rwanda, Tanzania and Uganda. KageraTransboundary Integrated Water Resources Management and development Project, Volume 1; Main Reportand Appendices

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Republic of Uganda, 1994: The National Environmental Management Policy for Uganda. Ministry of water,Lands and Environment

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The United Republic of Tanzania, 2004: National Disaster Management

Nile Basin Initiative, 2008: Sio-Malaba-Malakisi Policy, legal and Institutional Ccooperative FrameWork. Sio-Malaba-Malakisi Transboundary Integrated Water resources Management and Development Project. FinalReport

Nile Basin Initiative, 2008: Mara River Basin Policy, legal and Institutional Cooperative Framework. MaraRiver Basin Transboundary Integrated Water resources Management and Development Project. FinalReport

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Aarhus Convention on Public Participation – Convention on access to information, public participationin decision-making and access to justice in environmental matters (25 June 1998, Aarhus).

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http://www.fao.org/

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EAC Policy Harmomization-Draft Report(2)

Documents

Transcript of EAC Policy Harmomization-Draft Report(2)