Long Arm of the Law
In my previous few blog posts, I have been exploring how
different measures such as changing crops and traditional ecological knowledge
can improve productivity. For this one, the focus will be on an impediment -
water rights, using South Africa as a case study.
Agriculture demands the greatest share of water resources
compared to industrial and domestic uses, particularly in the form of
irrigation. As covered before, physical water scarcity may not plague Africa
but rather, economic water scarcity encumbers such use. Sometimes, water laws
further entangle the issue of access and can be discriminatory towards certain
groups, especially the poor. In Sub-Saharan Africa, the prevalent system is
that of issuing permits, whereby users can apply for legal usage of water and
managers can dictate the terms of usage if the application is authorised (vanKoppen & Schreiner, 2014). In theory at the state level, such regulation
safeguards against the overexploitation of water resources from large users
(e.g. transnational commercial farms, industries) and allows access to the poor
(van Kopper & Schreiner, 2014). In reality, small and rural users are often
discriminated against as customary water laws are deemed illegal and the system
of applying for permits provides advantages to the wealthy and larger users
(van Kopper & Schreiner, 2014). To better understand this, South Africa will be
used as a case study and the historical context will be explored.
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Background
Precolonial South Africa: Water use was determined by African
customary law (Tewari, 2009). Water and land were deemed free to use and the
different tribes and communities had chiefs who governed their distribution
(Tewari, 2009). This ended with the intrusion of resources by Dutch settlers and
control over the African communities.
Dutch rule: The Dutch settlers took reference from the
Netherlands, which had its law based upon Roman law and water was divided into
private and public (Tewari, 2009). Water could be accessed by all, but when there
were limited water resources, the state gave entitlements to individuals which
were subject to conditions and could be removed whenever these conditions were
not met (Tewari, 2009).
British rule: After the British took over the Cape, they
installed a riparian system. The state was divested from control of waterways
and given to individuals instead (Tewari, 2009). Ownership of land which was adjacent
to streams gave landowners right to that water.
Apartheid regime: The National Water Act enacted in 1956
retained the riparian system but gave the state final ultimate say in water usage.
More stringent measures were introduced for groundwater and industrial consumption
(Tewari, 2009).
However, van Koppen and Schreiner (2014) note that the
colonial and apartheid regimes removed Africans from the rights to water under
the riparian system as they were divested of 87% of land in the 1936 Land Act.
The leftover 13% was state land, thus it was possessed by the state (van Koppen & Schreiner, 2014). In the state lands, African customary law was practiced
in tandem with the riparian law (van Koppen & Schreiner, 2014).
Present Day
The National Water Act of 1998 sought to implement the permit
system in South Africa. It continued Water Services Act of providing citizens
free 25 litres a day but also introduced licenses, General Authorisations for
smaller users and Existing Lawful Uses. General Authorisations allow for usage
of small amounts of water without requiring a license while Existing Lawful
Uses entitles users who have documented use of water resources up to 2 years
prior to continue doing so until they have attained licenses (van Koppen & Schreiner, 2014). This reproduces inequalities through discriminating against black Africans
who practice customary law through sharing water resources and privileges
whites who have individual access to land and riparian rights from previous
regimes which are well recorded (van Koppen & Schreiner, 2014).
Moreover, Tewari and Oumar (2013) note that the high
administrative costs and bureaucratic inefficiency of issuing permits means
that national planning of water management focuses on large scale users. Within
South Africa, 70-90% of water used is by the highest 10% of users and the
remaining 60-80% of small users barely increases the volume captured (van Koppen & Schreiner, 2014). This discourages the Department of Water Affairs,
which administrates water resources, from issuing licenses to small-scale users
such as smallholder farms which complicates matters as they are using waters
illegally. Furthermore, investment in irrigation is deterred when water rights
are not secured because of increased financial risk incurred, ultimately affecting
agricultural productivity (Tewari & Oumar, 2013).
Therefore, the permit system, while intending to regulate
water usage, has reproduced historical inequalities that existed during the
colonial and apartheid rule. This new system has benefited many large-scale, literate
users who are able to navigate it while further entrenching the legal barriers
many poor black Africans face (van Koppen & Schreiner, 2014). Addressing this inequity
would be a useful step towards solving issues such as greater productivity in
agriculture.
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