Introduction

Water management is undergoing tremendous change involving the deposition of traditional public sector-based management systems for multi-stakeholder governance systems. In Kenya, a new law the Water Act of 2002 (Republic of Kenya, 2002) was passed. It repealed the water statute: the Water Act Chapter 272 of the laws of Kenya. The main objective of the new law is to bring about reforms that will:

• reduce the government's role in the sector to policy-making only and
• establish an institutional framework that would involve other stakeholders for effective management of the sector.

The Act is divided into two main parts: Part III – dealing with Water Resources Management and Part IV – dealing with Water Supply and Sewerage. The governance institutions and instruments established for the water resources management part (Part III) include the Ministry (Minister), the Water Resources Management Authority (WRMA), the Water Appeal Board (WAB) and the Catchment Area Advisory Committees (CAACs) while the instruments include the National Water Resources Management Strategies (NWRMS), the National Monitoring and Information System on Water Resources (NMISWR), the Catchment Management Strategy (CMS), permits and appeals. Studying the Kenyan situation offers lessons on mainstreaming participatory approaches in water governance of water resources.

Participation as principle of policy reform

Current reforms in the water sectors worldwide follow from the ideas of the Dublin Statement on Water and Sustainable Development. In terms of water governance, Principle Number 2, which states that 'water development and management should be based on participatory approach, involving users, planners and policy-makers at all levels' is particularly relevant. The Statement tells us in part that the participatory approach means: 'decisions are taken at the lowest appropriate level, with full public consultation and involvement of users in the planning and implementation of water projects'. To what extent the reforms of a particular country are able to ensure this goal is therefore of interest to policy-makers and analysts.

The Dublin Statement came as a precursor to the adaptation of Agenda 21. The Agenda stated in its Principle 10 that environmental issues such as water management should be handled with the participation of all concerned citizens (United Nations, 1997). The statement urges nations to facilitate public participation through methods that increase transparency, participatory decision-making and accountability (Jansky et al., 2005). In the context of water, Jansky et al. (2005) have interpreted the statement to mean:

• informing people of water management issues or activities that may affect them,
• involving the public in decision-making regarding such activities and
• providing those adversely affected by these decisions and activities with the means for seeking redress.

The question is whether the reforms that have been put in place by the Water Act of 2002 can ensure these three objectives.

Jansky et al. (2005) have adopted the International Association for Public Participation's perspective of participation in the water governance discourse. According to this perspective, public participation is considered as 'any process that involves the public in problem solving or decision making and uses public input to make better decisions'. Peña and Solanes (2003), on the other hand, have identified public participation as one of the key issues in effective water governance. They indicate that users may participate either in field activities or in integration and consultation with administrative and political institutions. One of the positive outcomes of participation in this case is that it ensures that the interests of users are taken into consideration.

The authors also note that participation is limited when a judicial framework allowing for public action is unavailable. This is what has led many countries including Kenya to implement reforms that would establish such frameworks. But the establishment of such frameworks in itself does not guarantee participation as the framework is in turn affected by access factors and lobbying capacity (Peña and Solanes, 2003). It is therefore important to assess the viability of such frameworks like the one put in place in Kenya by the Water Act of 2002 in terms of their potential for participatory approaches.

Water policy reform rhetoric in Kenya

Since the year 2003, government policy articulations and explications for the water sector have been awash with statements to the effect that by undertaking liberal reforms in the water sector, the good government has relinquished the management of the resource to other stakeholders while only retaining to itself the role of policy-making. In this regard, the chart reproduced here as Figure 1 is commonplace in policy documents.

Figure 1.

Government's own schematic representation of the institutional framework effected by reforms of the Water Act of 2002.
Source: Republic of Kenya (2007)

Full figure and legend (150K)

Here, we deal only with water resources management. According to the government, the institutional framework is thinnest at the top (Ministry of Water and Irrigation) and widest at the bottom (consumers, users). This is intended to reflect the devolution of power and decision-making responsibilities to the base, thereby ensuring local-level participation.

Institutions for participatory governance

Institutions are very important for achieving governance objectives in the water sector (Ananda et al., 2006). Table 1, as well as Figure 1, identifies institutions for water governance as established by the Water Act 2002. Table 1 is the alternative to the in-house classification of institutions (Figure 1) plus the instruments for water governance the law has put at the disposal of the institutions.

Table 1 - Institutional framework for water resources governance.

Full table

The minister

The government account places the Ministry at the top with the key responsibility for policy formulation. Of the roles/functions of the Minister, the one that engenders participation is the formulation of the NWRMS. The participatory nature of the NWRMS is discussed under Instruments for Participatory Governance.

Water resources management authority

The WRMA is the state agent dedicated to the governance of water resources. Although the authority is classified as a national institution, it will also be running regional offices; hence, it can also be classified as a regional player in the spatial hierarchy (Table 1). The authority is established by section 7 of the law. Its board is composed of the chairman appointed by the President of the Republic of Kenya and, ten other members appointed by the Minister.

According to the policy rhetoric, it is supposed to perform regulatory functions. The law lists its functions at section 8, but only the one that states that it has to liaise with other bodies in the management of water resources comes close to the application of participation in the governance set-up. The authority also functions as a watchdog institution and can prosecute offenders under the law.

The main undoing of the authority is that it is under the direct control of the Minister. The law states that: 'The authority shall, in the exercise and performance of its powers and functions, be subject to such directions as may be given by the Minister' (Republic of Kenya, 2002: 948). However, it has two instruments at the national level (the NMISWR, permit) and one at the local level (CMS) that it can wield with some degree of independence.

Water appeals board

The law establishes the board at section 84. WAB is composed of a chairman and two other members. Like the WRMA, its chairman is appointed by the President of the Republic of Kenya, while the other members are appointed by the Minister. It is supposed to adjudicate matters to do with appeals against decisions by state agents (Minister, WRMA, and others) concerning the issuance of permits. It also has the mandate to determine any other disputes that may arise between stakeholders of water resources. According to the government institutional model, Figure 1, WAB is left floating at the top to signify legal hierarchy and independence such that the Minister and all other stakeholders fall under its jurisdiction.

Catchment area advisory committee

CAACs are to be established under the provisions of section 16. CAAC members are appointed by the WRMA in consultation with the Minister. The committee is composed of 15 members appointed from among:

1. representatives of ministries or public bodies;
2. representatives of regional development authorities and local authorities;
3. representatives of farmers;
4. representatives of the business community;
5. representatives of non-governmental organisations; and
6. other persons of demonstrable competence.

Numbers 3–6 constitute involvement of non-state agents. The membership of CAAC is an instance where involvement of non-state stakeholders is recommended for a governance institution. The CAAC's key function is to advise their respective WRMA regional office on:

• water resource conservation, use and apportionment;
• the grant, adjustment, cancellation or variation of any permit; and
• any other matters pertinent to the proper management of water resources.

The main drawback of the committee is that the law decrees that it be dependent on the regional office of the WRMA for secretariat services, logistical and administrative support. This signifies its powerlessness and can limit the honest participation of its membership.

Instruments for participatory governance

National water resource management strategy

The Minister has to formulate the strategy that is then applied to manage, protect, use, develop, conserve and control the water resources of Kenya. The most interesting thing about the strategy is that the Minister formulates it through public consultation. This is the only instance that the law requires the Minister to refer his/her transactions to the public.

The main objective of the strategy as identified by the law is to prescribe the principles, objectives, procedures and institutional arrangements for the management, protection, use, development, conservation and control of water resources. In particular, the strategy aims to:

• provide a criterion for determination of the requirements of the reserve for each water resource;
• provide a criterion for classification of water resources;
• provide criteria for identification of areas that should be designated as protected areas and groundwater conservation areas; and
• provide for national monitoring and information systems on water resources.

This means that the Minister has to make certain critical decisions regarding water resources through public consultations that are good of the law.

National monitoring and information system on water resources

As already indicated, the system is to be provided for by the NWRMS. It is to provide for the collection and management of data and information regarding water resources and their management. The system also has to provide for procedures for data gathering and analysis and for dissemination of information on water resources. The law gives NWRMA powers to collect information from any individual or corporate entity for purposes of the system. Members of the public will be allowed to access information from the system, which will be good for promoting participation.

Permit and appeals

The NWRMA is responsible for issuance of permits for any water development or use. Particularly, a permit is required for the following:

• use of water that involves the employment of civil works;
• the drainage of swamp or wetland; and
• the discharge of pollutants into water bodies.

The usefulness of a permit as an instrument of participation is that an application, like the NWRMS, must be subject to public consultation. The law provides for anybody opposed to the grant of a permit to object to the WRMA in writing.

The WAB, on the other hand, is there to determine appeals from non-state actors against the decisions of a state agency like the authority or the Minister. The appeals give the actors a chance to get their grievances addressed and to ascertain their rights.

Catchment management strategy

First, the WRMA will designate a water catchment area. Thereafter, it formulates a management strategy for the area. A catchment area is defined by the law as: 'a defined area from which rainwater flows into a water course'. In this context, a catchment area is equivalent to a watershed that Jansky et al. (2005: 4) define as 'all land that drains into a river, lake or aquifer, along with the body of water itself'.

The CMS is a local version of the NWRMS and is intended to guide the management, use, development, conservation, protection and control of water resources within each catchment area. It is useful for participation for two reasons: one, that it is formulated through public consultation; and two, that it is a local-level strategy that should therefore have direct implications for local stakeholders.

The strategy is expected to address a number of issues including:

1. to take into account the classification of water resource and its quality objectives;
2. to be consistent with the NWRMS;
3. to prescribe the principles, objectives, procedures and institutional arrangement, use, development, conservation and control of water resources;
4. to have water allocation plans that set out principles for allocating water; and
5. to provide mechanisms and facilities for enabling the public and communities to participate in managing the water resources.

The last requirement is pertinent in mainstreaming participatory approaches in water resource governance at local levels. Under institutional arrangements prescribed in number 3, it is the CMS that is to 'encourage and facilitate the establishment and operation of water resources users associations (WRUAs) as fora for conflict resolution and cooperative management of water resources in catchment areas' (Republic of Kenya, 2002: 953).

Assessment of the water policy reforms

The institution of the Ministry (read central government) is supposed to have scaled down its powers to remain in the position of policy-making only. But this seems not to have taken place as the Minister maintains superintendent control over all state agencies, who in turn deal with other actors according to the instructions of the Minister. The government is therefore still very active in the management of water through the Minister.

The WRMA that is charged with regulation of the water resource sector is actually an agent of the Minister. The law categorically states that it has to function subject to the directions of the Minister. It is not an independent regulator as claimed in the policy rhetoric but a management agency of the government with branches at the local level.

The WAB seems to be a useful institution that may uphold the rights of all the actors. But the question of rights is its major problem. There is vagueness concerning the issue of rights because section 5 strips all the rights off the citizens and vests it in the state while section 85 says citizens may appeal if they have rights. This may render the institution of the board and the instrument of appeals meaningless or useless. The law therefore needs to be reviewed in order to clarify and enforce citizens" rights for effective participation.

The CAAC, as has been indicated in the discussion, introduces participation at the local level but it is elitist by nature. The composition of its membership simply makes it an exclusive club for elites from the public and the private sector. There should be a way of having citizens to elect their representatives to this committee, especially the vulnerable members of society. This should be done bearing in mind that water is a unique commodity that is used by everybody and so no distinction can be drawn between users and the public at large – hence everybody's interest needs to be taken care of.

The advisory role of the committee is not enough. Perhaps the name should be changed and the institution should be de-linked from WRMA by all means. It is important to note that the institution does not have any instrument to apply in the water management process, Table 1, which means it is powerless. Yet, it should be made the most powerful institution at the local level. A catchment area is an important water governance jurisdiction. In the case of India, Kolavalli and Kerr (2002) have noted that participation is critical element for successful and sustainable development of watersheds. It is therefore important to strengthen these institutions for the sake of effective governance.

The policy rhetoric, Figure 1, lists WRUAs as a category of institutions created by the reforms to manage water at local levels. Unfortunately, apart from the mere mention in one sentence that has been quoted in the preceding discussion, the law does not establish such an institution, neither does it create a specific mechanism for its establishment. This issue needs to be addressed in detail by the reform law.

Lastly, the law has recommended the use of public participation for the purposes of: CMS, permits and NWRMS. Section 107 details procedures for public participation. Therefore, to some extent, public participation is integrated in the national and local water strategies. But the strategies could just be national pastimes that are conducted from centralized positions. They may not present local answers to local problems. Therefore, there is a need to see enhancement of local people's participation in the day-to-day management of local water resources.

Conclusion

Contrary to the policy rhetoric that the government has applied the principle of subsidiarity in reforming the water resource governance in Kenya, the resultant structure is still centralized and far more bureaucratic than ever. The governance institutions are weak and ineffective at local levels or non-existent. Power from the central or national institutions needs to be trimmed and invested in local institutions. This can be done by strengthening or establishing and operationalising local institutions like water user associations for water and watershed management.

References

1. Ananda, Jayanath, Lin Crase and P.G. Pagan (2006) "A Preliminary Assessment of Water Institutions in India: An institutional design perspective", Review of Policy Research 23(4): 927–953. | Article |
2. Jansky, Libor, Dann M. Sklarew and Juha I. Uitto (2005) "Enhancing Public Participation and Governance in Water Resources Management", in Libor Jansky and Juha I. Uitto (eds.) Enhancing Participation and Governance in Water Resources Management: Conventional approaches and information technology, pp 3–18, Tokyo: United Nations Press.
3. Kolavalli, Shashi and John Kerr (2002) "Scaling up Participatory Watershed Development in India", Development and Change 33(2): 213–235. | Article |
4. Peña, Humberto and Miguel Solanes (2003) "Effective Governance in the Americas: A key issue", A paper prepared for the Third Water Forum in Kyoto, Japan, 16–23 March.
5. Republic of Kenya (2002) "The Kenya Gazette Supplement No. 107 (Acts No. 9): The water act 2002", Nairobi: Government Printer, 24 October.
6. Republic of Kenya (2007) "The National Water Services Strategy (2007–2015)", Nairobi: Ministry of Water and Irrigation.
7. United Nations (1997) Earth Summit Agenda 21: the United Nations Programme of Action from Rio, New York: Department of Public Information.