2 Understanding Legal Pluralism in Water

and Land Rights: Lessons from

Africa and Asia

Ruth Meinzen-Dick1 and Leticia Nkonya2

1International
Food Policy Research Institute (IFPRI), Washington, DC, USA;
e-mail: [email protected]; 2Department of Sociology, Anthropology and Social
Work, Kansas State University, Manhattan, Kansas, USA; e-mail: [email protected]

Abstract

Water rights, like the underlying resource itself, are fluid and changing; they necessarily connect people and
they can derive from many sources. Much of the property rights literature has focused on rights to land but, as
water rights are now receiving increasing attention from scholars and policy makers in developing countries, it
is useful to examine the differences and similarities between land and water rights – as well as the linkages
between the two. Without an understanding of the range and complexity of existing institutions that shape
water use, efforts to improve water allocations may be ineffective or even have the opposite effects from those
intended in terms of efficiency, environment, equity, empowerment and conflict reduction. Reforms need to
carefully consider the range of options available. This chapter reviews the multiple sources and types of water
rights and the links between land and water rights, using examples from Africa and Asia. It then examines the
implications for conflict and for water rights reform processes.
Keywords: water rights, land tenure, legal pluralism, customary law, conflict management, Africa, Asia.

Introduction tion from scholars and policy makers in develop

ing countries, it is useful to examine the
Two images are often associated with the term differences and similarities between land and
‘property rights’: (i) fixed stone walls – immo- water rights – as well as the linkages between
bile, permanent and restricting access to the the two.
resource; or (ii) a title deed – a piece of paper A starting point for this analysis is to consider
with a big seal affixed in a government office. why property rights matter, and why attention to
Neither of these images, deriving from the water rights has lagged behind attention to land
European tradition on land, is very helpful in rights. Reasons given for attention to property
understanding water rights, particularly in rights are often addressed under four ‘E’s and a
Africa and Asia. Water rights, like the underly- ‘C’: efficiency, environment, equity, empower-
ing resource itself, are fluid and changing; they ment and conflict reduction.
necessarily connect people and they can derive ● In terms of efficiency, the arguments are
from many sources besides the government. As often made that secure property rights are
water rights are now receiving increasing atten- needed to provide incentives to invest in a
© CAB International 2007. Community-based Water Law and Water Resource Management
12 Reform in Developing Countries (eds B. van Koppen, M. Giordano and J. Butterworth)
 Legal Pluralism in Water and Land Rights 13

resource. For water, this often means devel- and more crucial. In one way or another, water
oping and maintaining the infrastructure, rights institutions, and expectations about what
such as a well or an irrigation canal. claims to water are socially accepted as legiti-
● Environmental arguments are closely mate, are constituted by such competition,
related: property rights provide an incentive influencing people’s ability to obtain water.
to protect the resource and, without prop- However, water has several properties,
erty rights that are enforced, resources often meaning that water rights cannot be deter-
become degraded. mined in exactly the same way as rights to land
● Equity relates to the distribution of the and other resources. Water is mobile, and most
resource, and can be defined in terms of water use depends on flows. After water is
equality of access, particularly for meeting diverted, some evaporates or is transpired by
basic needs, or in terms of distribution of plants, but much water also runs back through
rights in proportion to the investments that surface channels and aquifers to be reused
people make, or some combination thereof. further downstream. Cultivation of crops, plant-
The way rights are defined determines ing or cutting of trees, and other changes in
whether people are included or excluded in land use transform the quantity and timing of
the control of a vital resource for their lives. water flows into and out of aquifers and rivers.
Holding property rights is thus empowering While much land is dedicated to a single use,
to individuals or groups, particularly control almost all water has multiple overlapping uses
rights that recognize authority over how the and users. All uses not only withdraw some
resource is managed. water, but also add something to the water that
● Clearly defined rights are also held to reduce affects the quality for users downstream, and
conflicts over resources during scarcity, changes in water flows affect not only human
which is a matter of growing concern with uses but also animals and the broader environ-
discussions of ‘water wars’.1 ment. Rights to water and the consequent
patterns of use concern not only how much
Given this importance of property rights and
water is withdrawn but also water quality and
of water, why has there not been more attention
the environment.
given to rights over water? The induced innova-
The slippery nature of water itself makes it
tion hypotheses argue that establishing effective
more difficult to define water rights because of
property rights is costly so, as long as a resource
the need for so much specificity: who can use
is abundant, there is little incentive or need to
how much water from what source, when and
define rights over it but, with increasing
for what purpose? This specificity, in turn,
demands and scarcity, there is pressure to
combined with the fugitive nature of the
define rights (Alchian and Demsetz, 1973). This
resource itself, increases the costs of monitoring
is seen in African history, where ‘frontier’ areas
and enforcing water laws. Instead of establish-
with low population densities have generally
ing rights once and for all, effective water rights
had more loosely defined land rights than areas
require active management of the resource and
of high population densities and, as popula-
attention to many different aspects of its use,
tions increase, land rights become more specific
including quality and quantity, in different
(Besley, 1995; Otsuka and Place, 2001).
places and times.
However, while changes in land tenure insti-
Improvements in water rights institutions
tutions are more familiar, studied and debated,
can help reduce poverty, improve economic
changes in water tenure have received less
productivity and protect nature, but these lofty
attention. Nevertheless, we also see that where
goals are often not achieved. Efforts to improve
water is plentiful, people often do not even
water allocations may be ineffective or even
know or care who else may be sharing the same
have the opposite effects from those intended.
river, lake or aquifer. As populations grow,
In this chapter, we argue that to be effective,
demands on water rise, for household use, agri-
reforms need to be grounded in a good under-
culture and industry. Those who use water are
standing of social institutions that shape rights
increasingly affected by the actions of other
to water; additionally, a careful assessment of
people. Coordination becomes more complex
the options available for improving water
14 R. Meinzen-Dick and L. Nkonya

management should be made, and a willing- the state is a primary institution that backs up
ness shown by those involved to experiment, property rights, but this is not necessarily the
adapt and learn from experience. The diversity case. Irrigation or other water development
of culture, environment, economic activities projects generate their own rules and regula-
and other conditions means there is no one best tions, which constitute yet another type of
way to improve water rights and water alloca- ‘water law’. Most religions also have precepts
tion institutions. The best route to better water relating to water that can provide the basis for
management depends on where you are start- entitlements or obligations regarding water.
ing from, with many pathways available (Bruns Particularly in the case of water rights, we find
and Meinzen-Dick, 2005). many examples of customary law (which
From this standpoint, the increasing atten- changes over time) that is backed by local
tion to water rights in Asia and Africa is very authority and social norms. User groups may
encouraging, particularly those efforts that seek define their own rules for a water point.
to address the intricacy of rights over this At the other end of the scale, international
complex resource. The remainder of this chap- treaties such as the Ramsar convention gener-
ter examines some of these complexities, and ate yet another type of law that can provide a
lessons that can be drawn, not only for water basis for placing claims on water resources, e.g.
governance in those regions but for other to prevent wetlands from being developed.
regions and other resources as well. We first Particularly in Africa, where so many countries
review the multiple sources and types of water share in international river basins, treaties and
rights and the links between land and water other international laws are relevant to the allo-
rights, before examining the implications for cation of these shared waters.
conflict and water rights reform processes. Most The pluralism of water law is further
of the emphasis in the chapter is on how water increased because each of these types of law –
rights affect people, and hence we focus on the especially state, customary and religious – may
local level, but the concluding section on reform itself be plural. Government land laws often
processes also addresses water rights at larger contradict water acts. Many communities have
levels. different ethnic groups living side by side and
using the same water, but having different tradi-
tions regarding its use. In particular, many sites
Legal Pluralism in Water Rights have farmers and pastoral groups, with differ-
ent ways of life and ideas on water. The mix of
Property rights can be defined as: ‘the claims, religions adds to this plurality. All of these types
entitlements and related obligations among of law will be interpreted differently in different
people regarding the use and disposition of a places, generating a plethora of local laws.
scarce resource’ (Furubotn and Pejovich, These different types of water laws are not
1972). Bromley (1992, p. 4) points out that: neatly separated; rather, they overlap and influ-
‘Rights have no meaning without correlated ence one another. Nor are all equally powerful
duties … on aspiring users to refrain from use.’ – their influence will vary. Figure 2.1 illustrates
This means that property rights are not a these overlapping types of law, which can be
relationship between a person and a thing thought of as force fields, with variable
but are social relationships between people strengths (Meinzen-Dick and Pradhan, 2002).
with relation to some object (the property). For example, customary law may be very
Particularly in the case of water, rights also have strong and state law virtually unknown or irrele-
corresponding duties that apply to the holder of vant in a remote community with low migration
those rights – usually to use the water and and low penetration of state agencies but, in a
dispose of wastes in a certain manner, and heterogeneous community with high migration
often to provide money, labour or other rates in the capital city, customary law may be
resources in maintaining the water supply. much weaker than state law (as illustrated in the
The crucial point is that property rights are Nyando basin, Kenya, by Onyango et al.,
effective (legitimized) only if there is some kind Chapter 11, this volume). In the case of rural
of institution to back them up. In many cases, land rights in Africa, Bruce and Migot-Adholla
 Legal Pluralism in Water and Land Rights 15

resource, which Roman legal traditions have

referred to as usufruct rights (see also Alchian
and Demsetz, 1973). Rights to earn income
from a resource (even without using it directly)
can be separate from the use and management
of the resource, as when government depart-
ments collect revenue from water users or when
individuals or communities collect a charge
from others who use water – a factor that is
increasingly important in the context of water
transfers.
An example from Kiptegan, a spring protec-
tion site in the Nyando basin of Kenya, illus-
trates this:
● Because of strong local norms that no one
Fig. 2.1. Overlapping legal orders relating to water
should be denied basic water needs, anyone
(from Meinzen-Dick and Pradhan, 2002).
has the right to withdraw water from the
pipe below the spring for drinking.
(1994) found that customary land tenure ● People may also use water for their cattle,
arrangements provided just as much tenure but only from the cattle trough, and they are
security as government-issued title to the expected to help keep the trough clean.
resource. Given the even higher costs of enforc- ● Those community members who have paid
ing water rights (compared with land rights) and some of the cost of developing the spring
the limitations of government agency capacity, protection are entitled to a higher level of
especially in most rural areas, customary law, service, including, if hydrologically feasible
backed by local norms and community sanc- and they have paid for it, a piped water
tions, may also be as effective as state law as a supply to meet domestic needs and some
basis for claiming water rights in many parts of small garden uses at their homestead, and to
Asia and Africa. have a say in selecting committee members.
● The members of the committee, who pro-
vide additional time and labour, also have
Bundles of Rights decision-making or control rights, including
decisions on who can join or who is excluded
As with rights over land or trees, water rights are from the user group, and how the spring and
not usually homogeneous ‘ownership’ rights its infrastructure will be managed. They also
that permit one to do anything with the collect fees from the group members, but do
resource, but they may rather be considered as not earn income from this themselves.
bundles of rights that may be held by different
These represent a blend of customary law,
parties. Indeed, because of the complex inter-
‘project law’ (in the form of rules developed
relations between these individual rights and
with external assistance when the spring was
rights-holders, they could even be considered
protected) and rules developed and modified
as a ‘web of interests’ (Arnold, 2002, cited in
by the user group.
Hodgson, 2004). The exact definition of these
While the exact definition of these bundles of
bundles varies, but they are often grouped into
rights varies from place to place, we find several
two broad categories: (i) use rights of access
common elements in many water laws in Africa:
and withdrawal; and (ii) decision-making rights
to regulate and control water uses and users, ● The state generally claims some kind of ulti-
including the rights to exclude others, manage mate ‘ownership’ rights over water, which
the resource or alienate it by transferring it to may not be felt at all at the local level, or it
others (Schlager and Ostrom, 1992). To these may require that individuals or groups who
may be added the rights to earn income from a want to use or develop a water source need
16 R. Meinzen-Dick and L. Nkonya

to get some kind of permission from the better resource outcomes. Similarly, in
state. Zimbabwe, Cleaver (1998, p. 355) reported:
● There are widespread notions that anyone is ‘Critical decisions about the rationing of
entitled to water for ‘primary uses’, which water from particular sources are only
are usually interpreted as basic domestic successfully enforced in those communities
needs, as well as needs for household where the decision has been taken at a meet-
gardens, but may include other productive ing of the whole community rather than a
livelihood needs. Islamic law has formalized committee alone. Consensus may enhance
this as a ‘right to thirst’ for people and collective management since it reduces
animals. Indeed, many African societies the need for compulsion, monitoring, and
recognize water needs of animals as well as sanction.’
people. As one Kalengin proverb in Kenya ● Most state, customary and religious laws do
says: ‘Even the hyena is entitled to water’, not grant alienation rights (to sell, give away
with the implication that no one can be or otherwise transfer one’s rights to some-
denied water (Onyango et al., Chapter 11, one else).2 More people can be allowed in,
this volume). but there is no profit to individuals in giving
● While basic use rights are strong, they are up their rights to water.
also usually quite flexible. Rather than being
Broad patterns of water rights in Asia show a
clearly defined in terms of who can draw
number of similarities, with the state claiming
how much water, access rights are socially
ownership of water. Customary and religious
negotiated, either individually or by groups,
laws also emphasize that all people should be
depending on changing local circumstances
given water for basic domestic needs, although
(Witsenburg and Adano, 2003). In range-
water use for even basic garden irrigation is
lands, Ngaido (1999) discusses the impor-
often more restricted. The state or local farmer
tance of access options for people to use
groups exercise control rights over how the irri-
another individual’s or group’s land and
gation systems and their water are used.
water resources under conditions like drought,
However, even within systems that have highly
which provide a measure of resilience
formalized rules, access to water is socially nego-
against ecological stress. Cleaver (1998,
tiated, either among communities or between
p. 351) reports a similar pattern for domestic
communities and government agency staff (for
water in Zimbabwe: ‘As a precaution against
examples, see Pradhan et al., 1997; Bruns and
drought, women rarely rely on one source of
Meinzen-Dick, 2000). There are some informal
water but maintain access to a number of
water markets, especially for groundwater, by
different supplies, often through reciprocal
which those with wells can sell water to other
social networks. Incentives to cooperate
farmers or to industries, but these are generally
may therefore be indirect and relate to the
‘spot markets’, not long-term transfer or alien-
need to maintain good relations with neigh-
ation of the underlying water rights (Easter et al.,
bours and kin in a more general sense.’
1998).
● Control rights of management and exclusion
are often held by the local chiefs, groups or
individuals who developed the source. The Types of Water Rights
effectiveness of these management authori-
ties in setting and enforcing the rules and in As with other types of property rights, water
maintaining the source varies greatly, as does rights can be broadly classified as public,
the extent to which they are participatory or common or private property, according to who
autocratic. Indeed, effectiveness and deci- holds the rights and, particularly, the decision-
sion-making practices are related. In Burkina making rights of allocation, which lie at the
Faso, McCarthy et al. (2004) found that heart of water rights (Bruns and Meinzen-Dick,
where the chiefs made decisions in collab- 2000, 2005; Paul, 2003).
oration with community members, rather Public water rights are rights held by the
than by themselves, there was a significantly state where the government allocates rights to
higher cooperative capacity, which led to users. Many countries adhere to some form of
 Legal Pluralism in Water and Land Rights 17

Public Trust Doctrine, a principle dating back at for domestic purposes or for watering livestock.
least to Roman law, which maintains that the However, they are required to obtain water
state holds navigable waters and certain other rights if they are using the water for irrigation or
water resources as common heritage for the commercial purposes. In some cases, private
benefit of the people. Under this doctrine, rights go beyond just use rights, to include the
control over water is an aspect of sovereignty, rights to allocate the water, as in Chile’s trad-
which the state cannot give up (Ingram and able water rights systems, in which a right-
Oggins, 1992). The government can assert its holder can transfer that water to others through
rights over water by controlling the water allo- sale or lease.
cation directly through government agencies, or Although there are individual use rights in
by acting as a licensing or leasing agent for Africa, private water allocation rights are not
granting water rights (Paul, 2003). In Zimbabwe widespread. There are some sources such as
for example, the water reform in the 1990s shallow wells or small dams that are considered
declared all the water to be the property of the private, in which the right-holder has the right
state. to allocate water from that source. In the case of
People can get water rights by acquiring a private water source like a well, an individual
water permits, which give them legal licence to is required to obtain land rights to be able to
use but not own water. Water permits are issued construct a well on a particular piece of land.
in consideration of the needs of the applicant After the well has been constructed, an indi-
and the expected benefits of the proposed vidual holds the rights to both the land and
water use (Latham, 2000; Mtisi and Nicol, water (Carlsson, 2003). Private water rights are
2003). In Mozambique, the Water Act of 1991 also widely observed for groundwater in Asia,
regards water as a public good. People cannot and farmers under farmer-managed irrigation
have private ownership of water sources but systems in Nepal and Indonesia may have
can obtain rights to use water by acquiring a private rights to a share of the water in those
water licence (Vaz and Pereira, 2000). Water systems.
licences are granted for a period of 5 years and In most treatments of property rights, these
are renewable. The use of water for primary types of rights are contrasted with open-access
needs like small irrigation, domestic use and situations in which anyone has unrestricted use
watering of livestock is free. of the resource. There are no specific rights
Common water rights refer to communal assigned to anyone and no one can be
water rights where water can be used by people excluded from using the resource. It is the lack
in ways that are specified by some community. of rules in open-access situations that is seen as
For true common property, some form of contributing to the ‘tragedy of the commons’,
community or user group should have rights to wherein resources degrade because of lack
allocate water at some level, e.g. in specifying of control over their use or lack of incentives
who may or may not use the water and in what for investment in their provision (Bromley,
ways, as seen in many farmer-managed irriga- 1992).
tion systems in Asia (Tang, 1992). In most Thus ‘open access’ has taken on a very
African customary water laws, water from negative connotation in much of the resource
natural resources is considered as a community management literature. However, many discus-
property and private ownership of such water is sions of African water rights use the term ‘open
not recognized (WFP, 2001). access’ with a positive connotation, which
Private property rights are rights held by an others might associate with the notion of
individual or legal individuals like corporations human rights to water (e.g. Gleick, 1999). In
(Bruns and Meinzen-Dick, 2005). With regard African countries, the notion of free access is
to water, it is generally only use rights that are also applied to some rangelands, rivers and
recognized for individuals, particularly permits streams (FAO, 2002). Many of these notions
or licences that give an individual a right to use were developed under conditions of low popu-
water in certain ways (Paul, 2003). In lation densities, and may not stand up to
Botswana, for example, people do not need to increasing scarcity and competition. In practice,
acquire water rights if they are using the water there are often some forms of restrictions on the
18 R. Meinzen-Dick and L. Nkonya

use of the resource. It is important to address water use rights without any payment, registra-
the questions of who will manage the resource, tion or licensing if the water is taken for reason-
how well and why, whether they cannot able use for domestic purposes, small
exclude others and what consequences these gardening and for animal watering. If the water
have for the state of the land and water as they is used for commercial purposes, then individ-
come under pressure. However, it is also impor- uals are required to obtain a legal entitlement or
tant to recognize the value placed upon ‘open licence to use water. Through the licensing
access’ to water for all, and to seek ways of system, an individual is granted water use right
accommodating this for growing populations. for a maximum of 40 years subject to renewal
Although these different property rights (Perret, 2002).
regimes can be distinguished analytically, in Regulations to public water rights are meant
practice they often overlap. The state may to control water use and to resolve problems
claim ultimate ownership of the resource, but that might occur as a result of overuse, and to
recognize communal rights over water in a resolve conflicts as results of competing uses.
stream and open-access primary use rights for There are thus public rights to regulate the
outsiders. When that same water percolates resource, collective rights of all to use water for
into the water table and is accessed through a basic needs and private individual use rights
well, it may be considered the private right of under licences.
the person who built the well.
South Africa provides an illustration of these
overlapping property rights regimes, and how The Relationship Between Land and
they change over time. During the apartheid Water Rights
era, state water law was based on the UK
common law principle, which gave use and Much of the current attention to water rights
control rights over water to those who owned reform now is directed at investigating ways of
the overlying land. Thus, groundwater, springs making water rights separable from rights over
and even small dams on a farm were effectively land. This particularly applies to well-publicized
private property. However, the customary law cases in western USA, Chile and Australia,
of most black communities held that there is no where growing demand for water for non-agri-
private control of water, but the community cultural uses in cities and industries creates
leader such as the village chief had the right to pressure to transfer water away from agricul-
control and determine the use of water ture. However, from the point of view of many
resources for the benefit of the whole commu- European statutory laws, water rights have
nity (Tewari, 2002). been a subsidiary component of land rights
The new government reformed water rights (Hodgson, 2004). In much of Africa and Asia it
through the National Water Act (Act 36 of is hard to identify the water rights because they
1998). This Act declared that the state is the are intrinsically linked to land. African custom-
guardian of all water resources in South Africa, ary land rights, in turn, depend on social rela-
but it also incorporated the African customary tions – membership in communities or relations
view on water rights by declaring water to be a with land-allocating chiefs, for example.
public resource belonging to the whole nation Indeed, in Ramazzotti’s (1996) review of the
and requiring to be available for common use ethnographic literature on customary water law,
by all South African citizens. All water required most of the information about water rights
for basic human needs like drinking is guaran- came from discussions of land law or the institu-
teed as a right (RSA, 1998; Perret, 2002). tions of chieftaincies, demonstrating how water
Under this Act, people cannot own water but rights are embedded in both land tenure and
can be granted water use rights through a social relations.
licensing system, which requires users to pay for Two very different environmental conditions
it. The money generated from water use – wetlands and semi-arid rangelands – illustrate
charges is used for water service and manage- the linkages between land and water rights. In
ment costs (Tewari, 2002; Farolfi, 2004). wetlands, control over land also gives control
Individual water users are authorized to have over water. Here, land is scarcer than water,
 Legal Pluralism in Water and Land Rights 19

and hence it makes sense to concentrate on the according to whether it is supposed to receive
allocation of land. By contrast, in dry areas, one season of irrigation per year or two, and
water rights are the key to the control and use land values and taxation rates differ accord-
of land for pastures. Access to water points ingly. The development of many irrigation
opens up the possibility of using large areas of projects has also disrupted land tenure arrange-
grazing land for migratory pastoralists.3 ments by expropriating the land to be irrigated,
Enclosing a water point can make pastoral and then reassigning plots in the new system.
production – and even the lives of the pastoral- This is illustrated in van Koppen’s (2000)
ists – unviable. study of the development of irrigation systems
Keeping animals often overlaps with other on bas fonds (wetlands) in Burkina Faso:
land (and water) uses. At the more humid end women had held relatively strong use, decision
of the spectrum, animals may be raised in agri- making and even full ownership rights over the
cultural areas, either by the farmers themselves bas fond, where they cultivated rice. However,
or by pastoralist households. While there can be the project initially ignored the fact that women
complementarity in resource use by letting were the landholders, and assigned ‘household’
animals graze on fallow fields, thus providing plots to the male heads of households, thereby
manure in exchange, there is also potential for weakening women’s rights – an example of
conflict, especially where cattle must pass by or project law and customary law clashing. The
through growing fields to get to water. In the result was a fall in productivity despite the
Kirindi Oya irrigation system in Sri Lanka, the ‘improvement’ of the technical infrastructure,
irrigation development displaced pastoralists because the underlying institutions – including
from land and did not provide enough alterna- not only property rights but also intra-house-
tive watering points for the cattle. Although the hold relations – were disrupted. Later sites
cattle farmers’ association was included in irri- under the project corrected this by involving the
gation Project Management Committee meet- women in the land allocation.
ings to address cattle damages to crops as they In other cases of irrigation development, the
walked through the system to get water, they state has expropriated all land in the area to be
were not included in the decision making about irrigated, and then reassigned (often smaller)
water allocation to ensure that their needs were plots within the irrigation system, as in Kenya,
met (Meinzen-Dick and Bakker, 2001). Malawi and Zimbabwe, for example. The result
At the drier end of the spectrum, there are may be stronger water rights, but weaker land
important overlapping uses between pastoral- tenure security, as the farmers cultivating irri-
ists and wildlife that are particularly important gated plots often shift from holding relatively
in Africa. The interactions between humans, strong customary use rights to their land to
livestock and wildlife have often been studied in being ‘tenants’ on government land, and
terms of land, particularly where parks or subject to the threat of eviction for failure to
reserves are created for wildlife, excluding the cultivate in prescribed ways, which often
people and their animals, but the interactions include growing specified crops.
and even conflicts are often over water, particu- Thus, farmers not only lose many decision-
larly where tourism is developed entailing making rights over their land but also face
consumption of large amounts of water, or uncertainty about the duration of their rights.
where fences are used to prevent people from And, because they often cannot transfer or sell
accessing water points, thus denying basic their land in the irrigation scheme, they do not
needs. benefit from any improvements. This contrasts
The principles of interconnected land and with the situation in much of Asia, where farm-
water rights are important in understanding ers generally have ownership rights to land
both wetlands and drylands, which are particu- within irrigation schemes, which provide for
larly important resources in Africa. But even in much greater security of tenure and a long-term
irrigation systems, land rights are key to obtain- view of irrigated production.
ing water. There are clearly demarcated areas of Even where land and water are not strongly
land entitled to receive irrigation water. In connected for productive purposes (as they are
South India, for example, land is even classified for cultivation or herding), there are vital links
20 R. Meinzen-Dick and L. Nkonya

between land and water rights. In Kenya, for vegetation and wetlands are often not clearly
example, there are strong norms specifying that defined, nor are they under the effective control
everyone has rights to use water. However, of a management entity that seeks to protect or
much of the land has been privatized (Onyango enhance their watershed functions.
et al., Chapter 11, this volume). In the Nyando Alongside the burgeoning number of water-
basin, land-buying companies bought land shed management projects supported by
from large-scale white farmers, subdivided and governments and NGOs, land and water rights
sold all of the land to smallholders, without are being increasingly separated. This is in part
regard for the slope or location of the plots rela- fuelled by government structures: land and
tive to water. While no one should be denied water are specified in different statutes and
water, it was not incumbent upon landowners administered by different government agencies.
to allow people and their animals to cross their Even international and donor organizations
private land to access the water. The result was recommending policies for land tenure often
that many people had no access to the springs neglect to mention water, and vice versa. There
or rivers, and hence could not get water, even are also fundamental differences in the concep-
for basic domestic needs. The few public access tualization of land and water rights, with state
points, such as bridges, became overused. law often treating land rights in the abstract,
Moreover, communities faced considerable without regard for location or topography (as
obstacles to developing water sources if they exemplified by the land-buying companies in
could not control the land, as well. Kenya). Water rights, by contrast, are usually
In the Kiptegan site referred to above, the defined in terms of location, time and use. In
spring development that benefited the whole reviewing both the functional linkages between
community was only possible when, after discus- land and water, and these divergences,
sions with World Agroforestry Center and Hodgson (2004) finds that: ‘Few formal mecha-
government staff, several men with land nisms exist in law to ensure a coordinated
surrounding a spring decided to devote that land approach to the allocation and administration
to the spring protection, planting indigenous of land tenure rights and water rights.’
trees above it and setting aside an area in which The growing trend toward integrated water
people and cattle could (separately) access the resources management (IWRM) tries to link
water (Leah Onyango and Brent Swallow, land and water management in overcoming the
Nairobi, 2004, personal communication). divide created by assigning authority over land
This spring protection offers a positive and water to different government agencies.
example of how the way in which land is used There are hopeful signs. Kenya’s current land
has a major impact on both the quality and the tenure and water rights reforms are taking place
quantity of water resources, and thus on water in parallel, but officials involved in the two
rights. Unfortunately, negative examples come processes are at least consulting one another.
to mind more readily: (i) cattle tracks or cultiva- However, for the integration of land and water
tion of hillsides contributing to soil erosion and rights, state law and institutions may not be the
hence lower water quality and silting up of best starting point. Rather, it is useful to look at
reservoirs; (ii) pesticide use on farms polluting the ways in which land and water rights and
the streams and groundwater; or (iii) deforesta- management have been linked in a range of
tion or reforestation affecting the run-off rates. customary institutions, and seek to identify
This linkage between land and water in hydro- principles upon which appropriate land and
logical units lies at the heart of watershed water rights linkages can be built.
management programmes. Swallow et al.
(2001) point out that these relations are
complex, and not all land is equally influential Water, Rights and Conflict
in this: there are particular types of land uses,
including wetlands, riverine vegetation and Based on property rights theory and experi-
paddy fields, that play critical roles as sinks or ences with land, it would seem that clearly
filters for water, sediment and other flows. defined property rights – which, by definition,
Unfortunately, the property rights to riverine create shared expectations – would help reduce
 Legal Pluralism in Water and Land Rights 21

conflict over water, particularly as it becomes situations of drought and hunger, as in 2000, are
scarcer. This notion provides part of the impe- different from other situations: they now have a
tus for water rights reforms and formalization common enemy to fight.
(Rogers and Hall, 2003). However logical it Thus, recognition of the two groups’ inter-
may be, it is not necessarily true. When a fixed relationships and common need for water
expectation comes up against a fluctuating mitigates conflict over this vital resource.
resource, that in itself can be a source of Studies from Zimbabwe (Cleaver, 1998;
conflict. This may explain why customary water Chikozho and Latham, 2005) have similarly
rights are so often ambiguous. found that customary water rights place a high
In a collection of studies of water conflict in value on conciliation and conflict avoidance.
Nepal and India (Benda-Beckmann et al., Although there may be rules governing the use
1997), a recurring theme is that local norms, of water, there is a reluctance to punish rule-
which form the basis for claiming water rights, breakers. ‘Approximate compliance’ is
are principles rather than precise rules, subject accepted, taking into consideration hardship
to recurring negotiation. Indeed, in many of circumstances of the rule-breakers. This is simi-
these cases it was the attempts to formalize lar to adat (customary law) in Indonesia, which
rights that often triggered conflict, rather than considers the intention behind an action as
the use of the water itself. The same was found being as important as the act itself when meting
along the Tana river in Kenya, where a govern- out sanctions (Ambler, 1998). Meinzen-Dick
ment land adjudication programme triggered and Bakker (2001) also found in Sri Lanka that
violence between Pokomo farmers and Orma communities allowed people to use water in
pastoralists, who had historically shared the ways that were against official government
resource under more flexible tenure arrange- regulations when ‘they need it and there is no
ments (Weiss, 2004). other source’.
That ambiguous or flexible rules are particu- Aaron Wolf (2000) suggests that localized
larly adapted to situations where the resource is principles used to manage water and mitigate
very variable is seen in a study from Marsabit, a conflict could also provide valuable lessons for
dry pastoral area in Northern Kenya. Although those dealing with water at the international
there has been recurrent violence and raiding level. Based on a study of the Berbers in
between the different ethnic groups in the area, Morocco and Bedouin in Israel, he suggests that
and both claimed rights to the water points principles such as prioritizing uses and protect-
based on different customary principles, ing downstream and minority rights can be
Witsenburg and Adano (2003, p. 11) found applied to international waters as well. From our
that conflicts actually decreased, rather than examination of these cases we can suggest an
increased, during drought because: additional principle to draw upon: the value
Both ethnic groups claim ownership of the well placed on mutual survival, because people
site, but they both said that the other group had a recognize that misfortunes that befall others
legitimate claim as well, which they consider in today may affect themselves tomorrow. This
crisis times of drought. Samburu/Rendille leads to a sense that, especially in times of
herdsmen said that the Boran have a rightful drought, there is a common enemy that
claim, because they have invested time, money competing users should cooperate to overcome.
and labour to develop the wells, whereas the
Boran admit that the Samburu/Rendille have a
rightful claim based on their history, having used
this water site long before the Boran migrated
Implications for Water Rights
from Ethiopia in the 1920s … many [violent] Reform Processes
incidents take place at well sites, though not
because they want to capture the well or to fight Many countries in Africa have been, or still are,
for access to the well. If they would really like to engaged in a variety of land tenure reform
use the well, they would approach the other processes. Now, due to a range of internal and
group peacefully. Instead, they fight at well sites external pressures, many in Africa and Asia are
because these are profitable places to raid when also embarking on water rights reforms. Com-
there is a concentration of people and animals … paring the impetus between land and water
22 R. Meinzen-Dick and L. Nkonya

rights reforms, Hodgson (2004, p. 30) finds: disasters’, unless they learn from the experience
‘The concerns of water rights reform, scarcity of land tenure reforms and take into account
and sustainability, are quite absent from the the range of existing water rights. In the remain-
land reform debate.’ But, on the other hand: der of this section, we examine how an
‘Generally speaking, water rights reforms have improved understanding of the complexity of
had fewer re-distributive or socio-economic existing (pluralistic) water rights could
objectives than reforms to land tenure rights. An contribute to effective reforms, and how the
exception is South Africa whose recently experiences from land and water rights reforms
enacted Water Act seeks to implement the two might inform one another.
key principles of the 1997 National Water It may yet be that the property rights school
Policy, “sustainability” and “equity”’ (Hodgson, will be proved right, and rising demands and
2004, p. 28). competition for limited water resources will
Many land tenure reform programmes (e.g. prompt formalization of water rights in Asia and
Kenya’s Swynnerton Plan (Swynnerton, 1954)) Africa. These changes are taking place in land
have imposed Western-style private property rights, both through state and external interven-
with cadastres and title. However, experience tion and endogenously through changes in the
has shown problems with this approach in customary law itself (Otsuka and Place, 2001).
terms of the high costs and potential to exclude With rising populations and growing per capita
many people. Research on customary tenure water consumption – for domestic uses, intensi-
(particularly in Africa) has also found that fication of agriculture and industrialization –
customary systems do not necessarily create water uses and users are becoming even more
tenure insecurity that limits investment (Bruce interconnected, not just at the local level where
and Migot-Adholla, 1994). Consequently, new face-to-face negotiations are possible, but over
donor and government plans take more large distances, from rural areas to cities, and
nuanced approaches, starting with more atten- even across national boundaries. For example,
tion to existing land tenure (e.g. EU, 2004). in the Mara-Serengeti basin of Kenya and
Even de Soto, a well-known advocate of Tanzania, agricultural development in the
land titling and privatization programmes, upstream areas is affecting the quantity and
argues that it is essential to understand the quality of water available for the pastoralists
customary rules and social contracts (‘people’s and wildlife further down, a factor com-
law’) that are already in place before imple- pounded by increasing tourism, which also
menting any major reforms: creates high water demands. Some form of new
institutional arrangements is called for to
Outside the West, extralegal social contracts
prevail for a good reason: they have managed
regulate or reconcile these competing demands.
much better than formal law to build on the Existing customary institutions are likely to
actual consensus between people about how be inadequate where the competing users are
their assets ought to be governed. Any attempt to from different ethnic or religious backgrounds
create a unified property system that does not and where they do not share the same norms
take into account the collective contracts that and customs. Thus, the emerging water law is
underpin existing property arrangements will likely to be based on state institutions. When the
crash into the very roots of the rights most people competing users do not even share the same
rely on for holding onto their assets. government, then creating some form of inter-
(de Soto, 2000, p. 171)
national institution is often suggested. But, as
If that applies to land rights, it is even truer for these decision-making and regulatory bodies
water. move away from the institutions, based on
Yet, water-reform processes are often domi- social relations in which much customary water
nated by (statutory) legal scholars and/or law is currently embedded, the users affected
hydrologists, and have not always started with are likely to have less direct say in the decision
a thorough understanding of existing water making. Just as importantly, they are likely to
rights and governance systems. Programmes of identify less with the other water users with
formalizing, registering and individualizing whom they share the resource, or to understand
water rights run the risk of creating ‘cadastre and respect each other’s needs. The lower
 Legal Pluralism in Water and Land Rights 23

influence on the rules and lower sense of people like her.

identity with other users are likely to reduce Another reason that the poor lose out is that
compliance with the rules, unless there is strong formal state systems often accord less recogni-
enforcement, which is often beyond the capacity tion to the overlapping rights to the resource,
of those new formal institutions. on which many poor people rely (Hodgson,
The question is whether the emerging 2004). We have seen that both land and water
(national or international) governance systems rights have multiple uses and users. These
that set and enforce water rights at these higher multiple users often have some shared under-
levels can build on the principles of social rela- standings on who, how, when and how much of
tions and personal contact, by including mech- the resource can be used, the interlinkages
anisms for members of different user groups to between them and perhaps even quality issues.
meet and understand each other’s needs. Such These are often lost in tenure reforms, particu-
‘multi-stakeholder platforms’ may take longer larly privatization, because such conditionality
in developing the rules, and may seem more is seen to increase transaction costs and hinder
costly than to just have ‘experts’ do the work, the efficient redistribution of property rights.
but in the long term it may pay off through Even when the state declares itself the owner of
increased legitimacy, and hence higher compli- all resources, as the custodian for all the people,
ance at lower enforcement costs. Hodgson (2004) finds that the effect is the
At the same time, we should not romanticize denial of customary rights as well as the erosion
customary systems. There is ample evidence of local management authority over the
that customary law frequently reflects unequal resource.
power relationships in local communities. Such Codification of rights often does not allow
relationships greatly affect the ways in which for considerations of special circumstances,
land and water are distributed and managed. such as basic livelihood needs, that are typically
State law may seek to confer more rights on the given substantial weight in customary systems.
less advantaged members of a given commu- This is partly due to limitations of state capacity
nity, on paper at least. Formalization of water to interpret individual circumstances, but it also
rights may also be called for to protect the liveli- derives from the current emphasis on the ‘rule
hoods of existing users against new uses and of law’, which implies that everyone should be
users. This is especially relevant as water use treated equally, without special considerations.
increases, bringing local users into competition Reforms of both land and water tenure often
with other users. have the objective of ‘regularizing’ all uses of
However, there is ample evidence that water under the authority of a state agency
groups like women or the poor often lose out in (Hodgson, 2004) or of ‘integrating all forms of
processes of formalization, particularly in land property into a unified system’ (de Soto, 2000,
titling programmes (Lastarria-Cornhiel, 1997). p. 162). Legal anthropologists who study the
One reason they lose out is that they often lack multiple types of ‘law’ that abound in any soci-
the resources (knowledge, time, travel and ety would suggest that this is not possible – that
money) required to acquire security of tenure pluralism will always persist, in some form. But,
through the state. But, as the ‘force field’ of even if it were possible to fit all customary law
state law increases, the customary security of within the ambit of state law, it may not be
tenure through social relations can weaken. To desirable, because the pluralism in water rights
understand the barriers that marginalized and basis for claims allow for dynamism, for
groups face in getting formally recognized adaptation to varying local circumstances
rights, it would be useful for those who develop (Berry, 1993; Meinzen-Dick and Pradhan,
any water rights registration programmes to 2002).
literally walk through the whole process with a One option that is increasingly used in land
poor rural woman. Seeing exactly what it would tenure reforms is for the state to recognize local
take for such a woman to acquire recognized authorities, who can set and administer rights
rights through the state could provide both within their areas. This builds on both local
insights and motivation to modify the system to custom and uses the institutions to back those
remove as many obstacles as possible for rights, instead of relying heavily on state appa-
24 R. Meinzen-Dick and L. Nkonya

ratus, which is often costly or ineffective, espe- change in state law can stimulate changes in
cially in rural areas. Tanner (2002) discusses customary law.
some of the challenges that this approach faced Because of the fundamental importance of
in Mozambique, particularly difficulties in codi- water, water rights reforms need to give particu-
fying many different customary systems, lar attention to the question of how such
protecting the rights of women (who are changes in state or local law will affect the poor.
strongly disadvantaged under customary land State law can make special provisions for disad-
law) and guarding against unscrupulous chiefs. vantaged groups, to which they can appeal. But
To this list of challenges should be added for this to have any effect requires legal literacy
variation in the capacity of local leaders and of campaigns, so that even illiterate rural women
communities to manage the resource. Effective will know of any new rights that they are
management of the resource itself is required to supposed to be accorded.
make water rights effective and, if the state does Before rushing to formalize water rights,
not deliver this, then local leadership and which have often involved either nationaliza-
collective action are critical. But such local insti- tion or privatization, it is important to consider
tutions do not function well in every commu- the full range of options, including looking for
nity; hence, devolution of authority over water new forms of property rights that build upon
rights will not work well in all locations, and due strong customary principles, especially the
attention should be given to local capacity widespread norms that specify rights to water
building. for basic needs. Here, the international
Whatever institutional reforms are chosen, discourse and customary law come together in
the state cannot simply wave a magic legislative emphasizing water as a basic human right.
wand or issue an administrative order and However, because water rights are meaningless
expect to automatically change water rights on without an institution to back them, serious
the ground. Effective changes – from de jure to questions of how much water can be used will
de facto – require more than changes in the law need to be addressed, as well as what incen-
itself: they need to become widely known, tives there will be for anyone to supply it.
discussed and even debated. South Africa’s ‘Open access’ to water may be desired (as
water rights reforms exemplify this. indicated in many of the local laws) but not
There was a prolonged process of public feasible. Yet, water rights reforms should strive
discussion over the Water Act, which not only to ensure that the basic principle is met: that
served to refine the legislation itself but to water for basic livelihood needs will be avail-
ensure that it was widely known, so that people able for all. Both restraint on use and invest-
could appeal to the new laws to claim their ment in provision are required. Achieving this
rights and to see that the provisions of the law may require going beyond conventional
were implemented. In contrast to other coun- measures of regulation or economic incentives,
tries in which reforms in water rights legislation to also appeal to norms and values of sharing
have been passed in response to donor and caring for others, as well as for the earth. As
requests, but never discussed, the public is Mahatma Gandhi reminded us, over 50 years
aware of South Africa’s reforms, which makes ago: ‘Earth provides enough to satisfy every
implementation much more likely. The next man’s need, but not every man’s greed.’
step is to build the capacity of implementing
institutions, which may require considerable
investment of time, training and other Acknowledgements
resources, particularly if multi-stakeholder insti-
tutions are to be developed (Seetal and Quibell, This chapter draws upon work done in collabo-
2005). ration with Bryan Bruns, Rajendra Pradhan,
However, it is not only statutory water rights Brent Swallow and Leah Onyango, particularly
that can be changed. Customary and even reli- Bruns and Meinzen-Dick (2000, 2005), Meinzen-
gious law also evolve over time in response to Dick and Pradhan (2002) and Onyango et al.,
changing environmental conditions, livelihoods Chapter 11, this volume. Esther Mwangi and
and even changes in other types of law. Thus, a Stephan Dohrn also gave valuable comments.
 Legal Pluralism in Water and Land Rights 25

The intellectual input of all these colleagues is 2 An exception in customary law is where someone
gratefully acknowledged. has dug a well or developed a source that is
considered private, and can bequeath that source
to heirs, e.g. under Maasai tradition (Potkanski,
Endnotes 1994, cited in Juma and Maganga, 2005).
3 In west Asia and North Africa, herders with large
1 Although there is considerable talk of ‘water wars’, flocks increasingly bring water to their animals,
in fact there is little evidence of international rather than the reverse, but the higher costs of fuel
violent conflict over water. Violence over water is and transport, as well as high poverty rates, make
more likely at the local level (Ravnborg, 2004). this less of an option in most of sub-Saharan Africa.

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