UZ CE 310 Water Law and Institutions September 2011

UNIVERSITY OF ZIMBABWE

CE310: WATER RESOURCES ZIMBABWE WATER LAW AND INSTITUTIONS

Dr. Eng. M. J. Tumbare

September 2011

LEARNING OBJECTIVES

TO UNDERSTAND THE EVOLUTION OF THE WATER LAW IN ZIMBABWE

TO UNDERSTAND THE KEY ASPECTS OF THE WATER LAW AS APPLIED IN ZIMBABWE

TO ARTICULATE & UNDERSTAND THE WATER MANAGEMENT POLICIES AND STRATEGIES IN ZIMBABWE

TO UNDERSTAND THE WATER MANAGEMENT STRUCTURES IN ZIMBABWE

TO ARTICULATE AND UNDERSTAND THE NEED FOR INTERNATIONAL RIVER BASIN ORGANISATIONS

2 UZ CE310 Water Law and Institutions-Tumbare 2011

RECOMMENDED READING

Makurira, H., Mugumo, M. (2003). Water Sector Reforms in Zimbabwe: The Importance of Policy and Institutional Coordination on Implementation. Proceedings of the African Regional Workshop on Watershed Management, Chapter 14 pp 167-174

Manzungu, E., Machiridza, R. (2005). Economic-legal ideology and water management in Zimbabwe: Implications for Smallholder Agriculture. International Workshop on African Water Laws: Plural Legislative Frameworks for Rural water Management in Africa, Johannesburg.

Mujere, N., Mazvimavi, D. (2005). Challenges affecting Irrigation Water Supply at

Nyanyadzi Smallholder Irrigation Scheme in Zimbabwe. WaterNet/WARFSA/GWP-SA Symposium, Swaziland.

Tumbare, M. J. (1998). The Zimbabwe Water Bill, Zimbabwe Engineer Vol. 63 No. 6. Tumbare M. J. (2005). Management of Shared Watercourses in southern Africa.

Water Management Journal 158 Issue WM4, Proceedings of the Institution of Civil Engineers, London.

UZ CE310 Water Law and Institutions-Tumbare 2011 3

RECOMMENDED READING (Cont)

SADC, 2000, Revised Protocol on Shared Watercourses, Associated Printer

SADC, 2006, Regional Water Policy, ISBN 99912-431-9-4

SADC, 2007, Regional Water Strategy, ISBN 978 99912-445-4-6 Tumbare, M. J. (2007). Managing Water Resources across International

Boundaries-The Challenges. 2nd Yangtze Forum, Changsha. Tumbare M. J., 2010, The Management of the Zambezi River Basin and Kariba

Dam, Bookworld Publishers, ISBN 978-9982-24-053-6

Zimbabwe Government. (1998). Zimbabwe Water Act, Chapter 20:24. Government Printers, Harare.

Zimbabwe Government. (1998). Zimbabwe National Water Authority Act, Chapter 20:25. Government Printers, Harare.


EVOLUTION OF THE ZIMBABWE WATER LAW

The early years: 1890-1927 Varying concepts of water law were tried. For example in the

allocation of water rights, the frontier mentality was applied. Frontier in this context means new and unexplored territory

no judges no courts no systems. Frontier mentality is thus a way of thinking that makes it

acceptable to disregard other peoples rights whilst advancing ones agenda.

Because of this frontier mentality, the water rights of the indigenous population were disregarded by the colonial white settlers.

In the early years, mining activities were prioritised resulting in water being committed first to mining.

In later years, agriculture also became important and the need to strike a balance between the competing uses of water became apparent.


EVOLUTION OF THE ZIMBABWE WATER LAW (Cont.)

Conflicts over the allocation and use of water thus developed.

This triggered the promulgation of the Union Irrigation Act of 1912.

This made provisions for the control, apportionment and use of water.

The 1912 Act was based on the common law as evolved and expounded by the Courts.

In 1913, the Water Ordinance, based on Roman Dutch Law, was passed as a way of comprehensively dealing with problems of rights to water.

Whilst the 1913 Water Ordinance was regarded as unsuited to the water resources and production of the colony, there was continued use of the riparian rights doctrine in interpreting access rights and differentiated water use types.



The 1920 Water Ordinance was thus introduced which explained that:

if a farmer has land well suited for irrigation and there is a stream that can be economically utilised, he can acquire the right to use the whole of the water for irrigation even though it may leave others without water except for primary purposes.

Another concept that was reflected in the 1920 Water Ordinance was primary, secondary and tertiary water use.

Primary water use was water for human and farm livestock use set at 230litres per person per day.

Water for secondary purposes was for irrigation and watering of livestock other than farm livestock.

Tertiary purposes included the needs of the mines and railways.



The 1920 Water Ordinance was replaced by the 1927 Water Act.

The 1927 Water Act prioritised agriculture over mining in the granting of water rights.

The 1927 Water Act was latter replaced by the 1947 Water Act.

The 1947 Water Act was further amended and replaced by the 1976 Water Act.

In 1980, upon becoming a legitimate independent State, Zimbabwe inherited the 1976 Water Act which was finally amended to the present 1998 Water Act, Chapter 20:24 of the Laws of Zimbabwe.



The 1927 Water Act came with a lot of Clauses that disadvantaged the indigenous people.

The 1930 Land Appropriation Act further disadvantaged indigenous populations as they were displaced to areas downstream of the white colonial settlers where they were no longer riparian to perennial rivers.

The whole legal system was against indigenous populations, compounded by lack of financial resources and collateral as the land belonged to the State.

All water rights were attached to land, which disadvantaged the indigenous populations who had been dispossessed and placed in the reserves where they did not and still have no title to land.

Rights to land in the reserves were registered with Communal Area bodies (formerly known as Tribal Trust Lands, now called Communal Lands) and not with individuals.



Indigenous populations could only apply for water rights as a community and through government officials.

Even then the District Commissioner or Minister of Water held the water right on behalf of the indigenous populations.

White colonial settlers on the other hand could individually apply for water rights because they owned land in their own private capacity.

Water rights were issued based on the priority date system; this meant that rights were granted on a first-come first-served basis.

Water rights were also issued in perpetuity, which meant that a water right once issued could not be revoked except in special circumstances such as the declaration of a drought or when someone else applied for the same water and was willing to pay compensation.



The Water Act of 1976 reaffirmed the Roman Dutch Law concept in water management and upheld the principles of the 1927 Water Act i.e. rights to water were linked to land, the priority date system of allocating water and granting a water right in perpetuity.

The Water Act of 1976 also provided for catchment outline plans to be prepared for the development and use of surface water.

Three types of water were recognised, public water, private water and underground water.

The Water Act of 1976, under a 1984 amendment, also provided for some stakeholder participation in such institutions as River Boards however, restricted to water right holders.

The 1976 Water Act also required applicants for water rights to put in place water measuring devices for a water right to be confirmed as permanent. This explains why most water rights in the Communal Lands were temporary the indigenous populations could not afford to put in the requisite measuring devices.

The water resources legal environment in the then British colony was marked by three major laws as discussed below.


Main characteristics of water legislation between 1927 and 1980 (Source: Manzungu et al, 2005)

1927 Act 1947 Act 1976 Act

Differentiation of public and private streams Differentiation of primary, secondary and tertiary use Created a Water Registrar and Water Court which centralized water allocation Required [all] people [using water] to apply for both a water right and approval of works to a Water Registrar Set up a priority right system for a drought year with applications given priority in order of time Allowed recognition of combined irrigation systems with Irrigation Boards that had certain rights and responsibilities in payments of development capital Required registration of all dams storing over one million gallons unless for a primary right

Declared that all water other than private water was registered with the governor Reconfirmed that water rights were attached to land and not individuals Private water was defined as that which naturally rises, falls or drains on to any land, provided such water is not naturally capable of entering any water course of natural origin Defined primary use as use for humans and animals and was set at 230 litres per day per person resident irrespective of colour or race, which can be used in gardens, for waterborne sewage purposes or other activities Clarified the rights of riparian landowners: They have the right, without any reference to the Water Court, to impound, divert or take any public water for primary use, and this right extends to any occupier or tenant of riparian lands. They also have, otherwise than in the public interest, a prior claim over non-riparian owners to be allocated by a Water Court for irrigation or other purposes Redefined priority of use as, firstly, all primary rights, then rights for irrigation purposes (based on date of issue) and then tertiary rights

Clarified and created regulations about groundwater use for the first time. No restrictions were placed on drilling except in underground or surface water control areas. Rights to use, and permits for groundwater, were linked to land Required dams of a certain size to be registered, and design and construction to be carried out by a registered engineer Required a riparian landowner intending to dam a public stream to notify all riparians downstream of the dam and contiguous to the dam Rescheduled water use types so that irrigation, fish farming and feedlots were registered as agricultural use


THE 1998 WATER ACT

Four main factors are generally attributed to the need to revisit the provisions of the 1976 Water Act.

1. The 1991/92 drought in Zimbabwe prompted the discussion on the need to revisit the provisions of the 1976 Water Act. Due to the 1991/92 drought, it was difficult to reallocate the then scarce water resource in a legal environment where;

Water rights were attached to land

Water rights were issued in perpetuity

Water rights were issued on a first-come-first served basis

Water abstractions were controlled by the water right holder as they were the owners of the volumetric measuring devices and policing usage was difficult


THE 1998 WATER ACT (Cont..)

2. The second factor was the general global concern pressing for a more efficient and sustainable approach to water management.

3. The third factor was that the Zimbabwean water legislation was perceived to be inconsistent with present water usage trends in Zimbabwe where more applications for water rights were being received.

4. The fourth factor was that the 1976 Water Act had a lot of weaknesses and was intended to protect the interests of the commercial farmers who constituted less than 1 percent of the countrys population of 10 million

An inter-ministerial review committee headed by the Ministry of Lands, Agriculture and Water Development was set up in mid-1993. The committee recommended that a new Water Act be put in place. In the short-term, smallholder farmers were allocated 10% of all water in Government dams. This was the origin of the Water and Zimbabwe National Water Authority Acts of 1998, Chapters 20:24 and 20:25 of the Laws of Zimbabwe respectively.


WEAKNESSES OF THE 1976 WATER ACT

The following were the main weaknesses of the 1976 Water Act: The issuance of all water rights was centralized at the Water Court in Harare. A water right was issued in perpetuity on a first-come-first-served basis. This

meant that when water resources were fully allocated, no further water rights could be issued, regardless of the need.

In the event of water shortage, the process of reallocation was very long and complex.

A water right would not be revised, even if the right holder was not exercising his or her water rights. The water rights could only be revised if the holder volunteered to do so.

The process of acquiring a water right was very long. Once granted, there was no requirement to pay for the possession of the water right or to contribute towards general water service provision.

The 1976 Water Act was silent on water quality and factors relating to the environment.

There was little consideration given to groundwater supplies. The Secretary of Water had to be informed if a deep borehole was drilled, but there was no control on the amounts of groundwater pumped, or the number and spacing of such boreholes.


THE 1998 WATER ACT (Cont.)

The 1998 Water Act has the following provisions:

Water permits, valid for a limited period, are issued instead of water rights in perpetuity.

Priority is given to efficient irrigation systems.

The priority date system was replaced with proportional water allocation.

The polluter pays principle was evoked where people who cause pollution of water pay for expenses for removing the pollution.

The environment is regarded as a legitimate user of water competing with other users such as in industry, agriculture and mining.

The State owns all surface and underground water.

Except for primary purposes (mainly for domestic uses such as drinking, cooking and washing) any use of water needs approval of the State.



Water is managed by catchment areas, as rivers do not match political or administrative boundaries.

All people with an interest in the use of water should be involved in making decisions about its use and management.

Identified water user groups include representatives from communal, small-scale and commercial farms, mines as well as urban representatives from industry, manufacturing and municipalities.

These identified groups replace the River Boards (which used to supervise day-to-day management) and the Advisory Councils (which used to assist in water planning) and have the responsibility of granting water permits, a function previously carried out by the Water Court.

Water is recognized as an economic good. People who use water would pay for it.



Water can no longer be privately owned.

Water is to be viewed from the complete hydrological perspective, i.e. groundwater and surface water are treated as part of one hydrological system.

New stakeholder-driven institutions to facilitate more efficient water management were required. Catchment Councils (CCs) and Sub-Catchment Councils (SCCs) were formed as key institutions to manage water affairs on the ground on a day-to-day basis.

The Zimbabwe National Water Authority (ZINWA) was formed through the ZINWA Act of 1998 with the primary role of taking over the commercial functions of the Department of Water Development.


SUMMARY OF INSTITUTIONS FORMED

ZINWA was formed to provide water services on a commercial basis. All fees charged for commercial water services are retained by ZINWA for further provision of water services. Services of a statutory nature provided by ZINWA are funded through the Water Fund, as directed by the Minister responsible for water.

CCs were established for the management of the seven demarcated catchment areas in Zimbabwe. A CC consists of representatives of lower-level catchment management institutions.

SCCs were formed to facilitate water management on a smaller scale. SCCs consist of representatives of the various water users within the sub-catchment. Representatives from each SCC form the CC, thereby representing their constituents at the sub-catchment scale.


ZIMBABWE CATCHMENT AREAS



CATCHMENT COUNCIL

(16 Members)

ZINWA CATCHMENT MANAGER

SCC (15 Members)

No. of SCCs No. of Members of each SCC TO CC

ZINWA CEx.

ZINWA BOARD

(10 Members

WATER MANAGEMENT STRUCTURES

4 Members by Minister 4 Members by Minister from CC 1 ZINWA CEx 1 Director of Water

CATCHMENT COUNCILS

The main responsibilities of CCs are to:

Prepare a catchment management plan, in consultation with the stakeholders, for the river system;

Grant permits for water use;

Regulate and supervise water use;

Supervise the performance of SCCs;

Resolve conflicts within their areas of jurisdiction.


SUB-CATCHMENT COUNCILS

The main functions of SCCs are to:

Regulate and supervise the implementation of permits, including groundwater use;

Monitor water flows and use, in accordance with allocations by the CC;

Provide representatives for the CC;

Promote catchment protection;

Monitor water discharges;

Assist in data collection and participate in catchment planning;

Collect rates and fees for all permits issued.


SHARED WATERCOURSE INSTITUTIONS/INTERNATIONAL RIVER BASIN

ORGANISATIONS


IWRM505 Tumbare May 2010 25


River Basin

Basin Area

Km2

SADC Countries and approximate percentage (%) of Basin area in each

country

Congo/Zaire

Zambezi

Orange/Sengu

Okavango

Limpopo

Ruvuma

Cunene

Cuvelai

Save

Incomati

Nata

Pungwe

Maputo

Buzi

Umbuluzi

3 670 000

1 359 000

848 000

708 000

416 000

155 000

106 000

100 000

96 000

50 000

47 000

32 500

32 000

31 000

5 600

Zambia, DRC, Angola , Tanzania and other non-SADC states

Zambia (40,7%), Zimbabwe (16%), Malawi (7,7%), Tanzania (2%),

Mozambique (11,4%), Angola (18,2%), Botswana (2,8%), Namibia (1,2%)

Lesotho (4%), Botswana (6%), Namibia (27%), South Africa (63%)

Angola (17%), Botswana (59%), Namibia(24%)

Botswana (10%), Zimbabwe (25%), South Africa (43%), Mozambique (22%)

Tanzania (25%), Mozambique (75%)

Namibia (13%), Angola (87%)

Namibia (39%), Angola (61%)

Zimbabwe (45%), Mozambique (55%)

Mozambique (5%), South Africa (82%), Swaziland (13%)

Zimbabwe (45%), Botswana (55%)


Mozambique (3%), South Africa (57%), Swaziland (40%)


Swaziland (56%), Mozambique (44%)

2000 2006

PROJECT LINKAGES TO SADC PROTOCOLS POLICIES,STRATEGIES

The Need for Establishing Shared Watercourse

Institutions/River Basin Organizations (SWI/RBOs)

To achieve the SADCs specific objectives;

To develop close cooperation for judicious, sustainable and co-ordinated utilisation of the

resources of the watercourses in the SADC

Region.

To co-ordinate, develop and manage in an environmentally sound manner the resources of

shared watercourses in the SADC Region in order

to support sustainable socio-economic

development.

To advance the SADC agenda of regional integration and poverty alleviation.




(Cont)

To implement the Provisions of the SADC Revised Protocol on Shared Watercourses

To manage the competing uses and demands on the water resources in shared watercourses sustainably, requires such watercourses to be managed as basin units in a holistic and integrated manner.

The basic principles of integrated water resources management (IWRM) are best applicable in managing the competing uses and users of the shared watercourses.




(Cont)

To fulfill the need for a basinwide communication & planning platform

To mitigate the shared watercourse/basins Flood & Drought Events

To facilitate conjunctive management & operation of Shared Watercourses/Basin water resources

infrastructure

To facilitate Shared watercourse/Basinwide data capture, processing, dissemination & information

sharing




(Cont)

To facilitate application of Harmonised Shared watercourse/Basinwide water quality and effluent

standards

The promotion of equitable and sustainable utilization of the water resources of the Shared

watercourse/Basin

Facilitation of implementing joint Shared watercourse/Basinwide projects

Facilitate the implementation of sharing of benefits rather than sharing of water

Resilience of joint projects


Processes Involved in Establishing

SWI/RBOs and Management Tools

GOVERNANCE AND STAKEHOLDER ISSUES

Triggers required for commencement of negotiations to set up SWI/RBO

SWI/RBO Agreement approved/signed by each riparian state

SWI/RBO Agreement ratified by at least two-thirds of the Watercourse/Basin states

SWI/RBO Secretariat location agreed upon and physically set up (Offices, furniture etc)

SWI/RBO Agreement readily accessible to stakeholders (posted on website or widely distributed)

SWI/RBO organs and related staff have clear definitions of roles and responsibilities (ToR and Job Descriptions)


Processes Involved in Establishing SWI/RBOs and Management Tools (Cont)

SWI/RBO meets with stakeholders to receive input on plans and priorities (documented meeting minutes maintained)

SWI/RBO issues specific response to input/issues from stakeholders (documented meeting minutes or written communication)

SWI/RBO communicates issues and decisions pertaining to river basin management through effective media outlets (number of press releases aired in all member states)

SWI/RBO meetings (or minutes), decisions and plans accessible to stakeholders (posted on website and/or widely distributed via radio and print media in member states)

SWI/RBO has a defined constituency (specified in strategic planning documents)



MANAGEMENT PRACTICES

SWI/RBO organs (with quorum) meet at specified times each year

SWI/RBO has operational mechanisms in place to document SWI/RBO decisions and take corresponding actions

Administrative procedures documented and approved (Admin/Financial/Audit Manuals etc)

SWI/RBO has an approved Strategic Plan for fulfilling mandates.

SWI/RBO approves annual (or longer) operational plans Approved plans incorporate monitoring, evaluation, audit and reporting activities

SWI/RBO approves Annual Reports on progress



FINANCIAL RESOURCES

SWI/RBO states quotas/support quantified/defined and agreed upon

Contributions tracked (payments/support up to date)

Other donor/project support supervised/coordinated by SWI/RBO

SWI/RBO prepares annual budget for approval. Budget defines "core operational costs" separate from others. SWI/RBO states contributions are >50% of core operational costs

Annual Financial Report is prepared

Annual Financial Audit completed and Report approved by SWI/RBO supreme organ



SWI/RBO documents its agreed rules for developments in the shared watercourse/basin that could affect water resources in

other watercourse/basin states

SWI/RBO documents agreed criteria for water allocation among watercourse/basin states

SWI/RBO agrees on and documents a system for enforcing rules, processing of complaints and resolution of conflicts

among watercourse/basin states

SWI/RBO monitors water flow and quality between watercourse/basin states using agreed protocols for

measurements and for sharing data

SWI/RBO develops and approves a strategic management plan for the watercourse/basin (consistent with IWRM principles)


Processes Involved in Establishing SWI/RBOs (Cont)

SUSTAINABILITY

SWI/RBO approves a plan for distributing recurrent costs of core operations among SWI/RBO states

Evaluation conducted to review management and administrative structures in response to organizational

development needs.

As per Agreement, SWI/RBO member states include recurrent costs in national budgets

Sustainable (long-term) funding plan is developed/approved


Main Challenges faced by SWI/RBOs in Managing

Shared Watercourses/River Basin Organizations

In the SADC region, the challenges can be grouped

into four broad areas;

Water Governance related challenges,

Water Security related challenges,

Cross-cutting challenges ,and

Other Critical challenges.


Challenges associated with Managing Water

Resources Across International Boundaries

(Cont)

WATER GOVERNANCE RELATED CHALLENGES

1. The need for Political Good-will and common Shared Vision

2. Putting in place Protocols, Agreements and Legal Instruments

3. Dealing with prior existing Protocols and Agreements

4. Different levels of development of the riparian states

5. Establishing the Watercourse Management Institutions/ River Basin Organizations

6. Establishing trust and confidence amongst the riparian states

7. Establishing Stakeholder participation



Resources Across International Boundaries

(Cont)

WATER SECURITY RELATED CHALLENGES

1. DEALING WITH NATURAL DISASTERS

Floods and Droughts

Climate Change and adaptation

2. WATER SCARCITY

Equity (Sharing costs and benefits)

Reasonable Use (Quantity and Quality)

Least Harm (Effluent quality, Dam Operations, etc)

Sovereignty



Resources Across International Boundaries (Cont)

CROSS-CUTTING CHALLENGES

Poverty

HIV/AIDS

OTHER CRITICAL CHALLENGES

The shear size of some Watercourses/River Basins

Dealing with wars, conflicts & economic instability

Attracting and retaining Co-operating Partners involvement


THE WAY FORWARD IN

ESTABLISHING/OPERATIONALISING SWI/RBOs

Co-operation cannot be forced due to sovereignty of the riparian states

The SADC WD should continue to dialogue with the riparian states yet to sign/ratify

The benefits of establishing the SWI/RBOs should be demonstrated. Such benefits include; coordinated Water

Resources Development Strategies, holistic Environmental

Management Programmes & meaningful Climate Change

Adaptation Strategies

SADC WD & those riparian states that have ratified should endeavour to understand the underlying reasons for non-

ratification by others of the SWI/RBO Agreements to enable

solutions to be found

An Interim Secretariat arrangement can be agreed upon by all the SWI/RBO riparian states


END OF LECTURE

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Tumbare 2011

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