History and future of shared water resources

Contemporary water management regimes in many developing countries have been unable to meet the expectation of efficiency and sustainability. This is despite the specific incorporation of principles into national law that are intended to promote social equity, support increased opportunity for poor people, and promote management based on ecological considerations and “sound science.” It seems that these evolving state-initiated water management regimes, like other recent attempts in natural resource management, are ill equipped to contain conflict and disputes. The literature suggests that at the crux of this is the failure to develop appropriate governance regimes that can address the full complexity at the user level (Murombedzi, 2001; Campbell et al., 2001; Mohamed-Katerere, 2001a). Although the improvement of governance regimes has been a key concern, little attention has been paid to the potential role of customary law and other locally developed legal or normative systems. This is so not withstanding the increasing recognition of the value of traditional water management.2 Against this reality we look at how such systems can be used to support the development of improved managerial regimes. Our main focus in this article is on Zimbabwe; however we also draw on case studies from elsewhere in Africa and beyond. We begin by explaining why it is important to consider customary law approaches in developing and improving governance regimes. In the second section, through a focus on colonially imposed law, we consider the interaction between state law and locally driven normative and value systems, and the implications of this for practice. We find that despite the formal marginalization of such systems, they have remained an important aspect of local practice. In the third section, we then look at how customary law approaches tally with new developments in state-driven water law reform, and find that customary law approaches have not been adequately accommodated. In the fourth section, we consider whether the institutional frameworks for participation, under the newly reformed water law of Zimbabwe, increase the opportunity for alternative norms to be taken into account, and hence their relevance. In the fifth section, we argue that policy and law development is more likely to be successful if it can face local normative systems head on; we consider approaches to policy- and law-making as well as conflict resolution that might take us through this impasse and assist in untying the knot of silence.

Pieter van der Zaag and Jennifer Mohamed-Katerere

University of Zimbabwe, Lawyer - Zimbabwe, Harare

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