January 18, 2016
News /
Posted by NCID

While the related pressures of anthropogenic climate change and population growth will continue to make essential natural resources scarce globally, domestic and international policy has been slow to adapt to this threat. In Kenya, the issue of water rights is heating up rapidly as insufficient infrastructure and dwindling surface waters already leaves many underserved.

Despite the East African country relying economically on water resources, it is simply a water scarce nation. Roughly 90% of its total area is unsuitable for crop cultivation,[i]  yet agricultural production remains the largest single contributor to Kenya’s GDP; in the last two years it climbed above 30% of GDP[ii] and employs as much as 80% of the population.[iii] However, further potential to grow, or even maintain the current reliance on water dependent industries is up for questioning, as agriculture alone represents nearly 80% of freshwater withdrawals in Kenya.[iv]

Turning to individual water access, significant gaps remain between supply and demand. However that gap follows divergent trends in urban and rural areas. The percent access to clean or improved sources has fallen in urban areas to 82%, while the opposite is true in rural areas, where access has improved to 57%.[v] Explained, Nairobi and Mombasa (Kenya’s two biggest cities) have fallen behind as a result of a doubling of their populations since 1990, while rural areas have benefitted from slow and steady infrastructure improvements (driven largely via drilling of local boreholes).

Constraints on supplying water to the large number of unserved urban residents fall chiefly on a general shortage of available water and the manifold infrastructure issues in supplying piped water throughout informal settlements, most famously Kibera in Nairobi. In the broader metropolitan area, around 40% of water volume is unaccounted for by the Nairobi City Water and Sewerage Company, most of which is lost through leaks or illegal connections, largely attributed to such settlements.[vi] As might be expected, these users, despite being remarkably impoverished, pay significantly higher rates –as much as 10 times more– for poorer quality water compared to middle and high income areas of Nairobi.[vii]

Still the urban access issue goes beyond settlements; a reported 750,000 individuals arrive in the Nairobi area annually, inciting calls for the development of new water resources.[viii] But, how much surface and groundwater is available for sustainable development as a resource? The simple answer is “not that much”, but depends on how much you are willing to invest.[ix] Much of the available surface water –that is water derived from sources that require minimal or no drilling– is already being exploited for drinking, agricultural, or industrial purposes, unavailable due to high ecological value, or it is unsuitable for consumption. The responsibility of identifying these opportunities falls to the Water Resource Management Authority of Kenya (WRMA), whose job, among other things, is to carryout hydrological studies and determine which resources can be sustainably developed for use. Besides being technically difficult, this is not an apolitical process.

The water politics landscape

As part of the Ministry of Water and Irrigation’s strategy, which is codified in the 2002 Water Act, granting licenses to private enterprises capable and willing to extract and sell this valuable resource. Furthermore, allocation of development rights and consumption are separated by catchment area, meaning there are hard limits, at least on surface water, for where different cities and projects can source their water. This becomes especially problematic when considering groundwater, which may recharge in one catchment, but can flow in many directions underground. The result is that access to surface sources is highly contested by both economic and political interests. To solve this, the WRMA needs to continue developing water sources sustainably, but also focus on how to equitably distribute the remaining low-hanging fruits in a fair and transparent manner.

This issue and the value of unexploited surface waters was (again) highlighted this December when a reservoir in the Athi Catchment (Nairobi area) was subject to a reported land grab by a private entity from another private entity. Although it was leased to the Nairobi City Water and Sewerage Company, a Kenyan developer of foreign origin negotiated with a local authority to claim and physically fence off the area. The dispute was part of protracted legal case and was only settled after President Kenyatta intervened to forcibly evict the developer from the Loresha Reservoir. But this resolution was starkly peaceful compared to a recent dispute over access to the Tana River, which resulted in scores of dead individuals.

A new water governance bill, first proposed in 2012, aims to alleviate such tensions. One of its central proposed changes is the devolution of the right to lease a water source. Under current law, eight water boards (divided by the above mentioned catchment areas) have the right to sign contracts with private providers who are responsible for extracting and delivering water to various users. While devolution has been a trusty tool ever since the ratification of the 2010 Constitution, it is not clear that this is the most effective approach with water. Moving away from hydrologically defined administrative divisions to 47 politically defined regions could potentially come at the cost of long term sustainability, a point which has not been missed by critics.[x] Furthermore, national-level authorities, such as the Ministry of Water and Irrigation and the WRMA will see their resources stretched very thin as they will oversee almost six-times as many entities, where coordinating use and extraction rates will be a greater challenge than ever.

However what is lost in terms of coordination in delivering this public good, may come back as benefits through locally tailored policies as a result of devolution. County governments have been reasonably effective since being reinstituted in 2010 and there is cause to believe that they would be the same with water provision and distribution. In an ideal scenario, this would result in increases in competition an innovation amongst water service providers, if the national-level entities are able to ensure this is done transparently.[xi]

Unfortunately, the Water Bill is entering its fourth year under debate. The stalemate appears to be driven by two major factors: 1) water access crosses a host of massive issues, including financial interests, human rights claims, political power, ethnic divisions, and conservation imperatives, and 2) the current system is already functioning to a reasonable standard, given the challenges it faces. The general feeling is that if the above-mentioned changes proven unfeasible, there may be no reform after all. In that case, the minimum the Government of Kenya can do is encourage investment in developing ground water resources, where most of Kenya’s remaining water potential lays. To assist in that task, the international community should continue investing in infrastructure improvements in Kenya, to take pressure off governance mechanisms by making water supply and provision more abundant and efficient.

Cover photo: Kibera residents stand above one section of the many kilometers of water pipes in the settlement. Credit: Flickr user Cambridge Engineering

[ii] Ibid.
[v] WHO/UNICEF Joint Monitoring Program for Water Supply and Sanitation:
[vi] African Studies Center. Water Reforms and Interventions in Urban Kenya. Working Paper 83/2009.