TABLE OF CONTENTS

LIST OF ABBREVIATIONS AND ACRONYMS ...................................................................................................................iv EXECUTIVE SUMMARY ...................................................................................................................................................v 1.0 INTRODUCTION ................................................................................................................................................1 1.1 Background .......................................................................................................................................................1 1.2 Objectives of the assignment ..................................................................................................................................2 1.3 The Approach and Methodology ..........................................................................................................................2 1.4 Outline of the Report ...........................................................................................................................................3 2.0 OVERVIEW OF THE LAKE VICTORIA BASIN ......................................................................................................4 2.1 Introduction ........................................................................................................................................................4 2.2 Main Features of the Lake Victoria Basin ..............................................................................................................4 3.0 ANALYSIS AND REVIEW OF THE EXISTING NATIONAL POLICIES, LAWS AND REGULATIONS ..........................................6 3.1 Kenya National Policy and Legal Framework .........................................................................................................6 3.1.1 Kenya Water Related Policies ............................................................................................................................ 6 3.2 Tanzania National Policy and Legal Framework......................................................................................................... 19 3.2.1 Review of Water Related Policies ............................................................................................................. 19 3.2.3 Institutional Framework for management of water resources .............................................................................. 28 3.3 Uganda National Policy and Legal Framework .......................................................................................................... 32 3.3.1 Review of Water Related Policies ................................................................................................................... 32 3.3.2 Review of water related laws and regulations ................................................................................................. 36 3.3.3 Institutional Framework for management of water resources .............................................................................. 40 3.4 Rwanda National Policy and Legal Framework ......................................................................................................... 41 3.4.1 Review of Water Related Policies ................................................................................................................... 41 3.4.2 Review of water related laws and regulations............................................................................................. 45 3.4.3 Institutional Framework for management of water resources .............................................................................. 46 3.5 Burundi National Policy and Legal Framework........................................................................................................... 48 3.5.1 Water Related Policies .................................................................................................................................. 48 3.6 Summary of Key Issues and Challenges Facing Lake Victoria Basin ..................................................................... 49 3.7 Comparative analysis of water policies, laws and regulation (SWOC Analysis) ....................................................... 51 3.7.1 SWOT Analysis of the Existing Policy, Legal and Regulations ..................................................................... 52 4. REVIEW OF EXISTING REGINAL AND INTERNATIONAL TREATIES, PROTOCOLS, CONVENTIONS AND AGREEMENTS ............................................................................................................................................................................. 54 4.1 East African Community .................................................................................................................................... 54 4.1.1 The East African Treaty 1999 ................................................................................................................... 54 4.1.2 Areas of Cooperation .............................................................................................................................. 54 4.1.3 Objectives and key Principles of the Treaty ............................................................................................... 54 4.1.4 Commitments of the Partner States .......................................................................................................... 55 4.2 Protocol for Sustainable Development of Lake Victoria Basin ................................................................................ 55 4.2.1 Preamble ............................................................................................................................................... 55 4.2.2 The parties to the Protocol ....................................................................................................................... 57 4.2.3 The Scope of the protocol ........................................................................................................................ 57 4.2.4 Principles ............................................................................................................................................... 57 4.2.5 Rights and Obligations ............................................................................................................................ 57 4.2.6 Review on mainstreaming of protocol for sustainable development of lake Victoria Basin into Water related Policies, Laws and Regulations ................................................................................................................ 58 4.3 Treaties and Conventions .................................................................................................................................. 59 4.3.1 The Position of the Partner States in regards to the Existing Colonial Agreements ........................................ 59 4.3.2 The 1929 Nile Water Agreement .............................................................................................................. 61 4.3.3 The Agreement between the United Kingdom and Belgium regarding water rights on the Boundary between Tanganyika and Ruanda-Urundi, 1934 ...................................................................................................... 61 4.3.4 The 1929 Nile Water agreement between Egypt and Sudan ........................................................................ 62 4.3.5 The 1949 and 1953 Agreements relating to the construction of the Owen Falls dam ...................................... 63 4.3.6 The Vienna Convention on the Law of Treaties 1969. ................................................................................. 63

4.2.7 The 1993 Agreement between Ethiopia and Egypt. .................................................................................... 64 4.3 Transboundary Water Resources Management ................................................................................................... 66 4.3.1 Introduction ............................................................................................................................................ 66 4.3.2 Treaty Law ............................................................................................................................................. 68 4.3.3 UN Convention on the Law of Treaty......................................................................................................... 69 4.3.4 Treaties on International Watercourses ..................................................................................................... 71 4.3.5 Customary International Law and the Contribution of the Learned Society .................................................... 71 4.3.6 Enforcement, Compliance and Dispute Resolution ..................................................................................... 72 4.3.7 Overall Lessons Learned and Best Practices ............................................................................................. 72 5. REVIEW OF THE EXISTING CAPACITY OF NATIONAL AND LOCAL INSTITUTIONS FOR THE MANAGEMENT OF TRANSBOUNDARY WATER RESOURCES ................................................................................................................... 75 5.1 Kenya National Water Sector Institutional Capacity.................................................................................................... 75 5.2 Tanzania National Water Sector Institutional Capacity ................................................................................................ 75 5.3 Uganda National Water Sector Institutional Capacity.................................................................................................. 75 5.4 Rwanda National Water Sector Institutional Capacity ................................................................................................. 76 5.5 Burundi National Water Sector Institutional Capacity .................................................................................................. 76 5.6 Strength and weaknesses of institutional framework for management of water resources .................................................. 76 5.7 Institutional Capacity Needs to Address identified weaknesses .................................................................................... 76 6.0 REVIEW OF THE REGIONAL AND NATIONAL INSTITUTIONAL ARRANGEMENTS FOR THE IMPLEMENTATION OF THE PROPOSED HARMONISED POLICIES, LAWS AND REGULATIONS ..................................................... 77 6.1 Regional Institutions ............................................................................................................................................ 77 6.1.1 Lake Victoria Basin Commission ................................................................................................................... 77 6.1.2 Lake Victoria Fisheries Organization............................................................................................................... 79 6.1.3 Proposed Mechanisms for enhancing National and Regional Institutional arrangement............................................... 79 7.0 REVIEW OF THE EXISTING PARTICIPATION OF COMMUNITIES AND OTHER STAKEHOLDERS IN THE MANAGEMENT OF TRANSBOUNDARY WATER RESOURCES ......................................................................................................... 80 7.1 Regional Level ................................................................................................................................................... 80 7.2 International and Regional agencies ....................................................................................................................... 81 7.3 National and Local Level ...................................................................................................................................... 81 7.4 Potential Roles of communities and other stakeholders in implementation of the proposed policies, laws and regulations ........ 81 7.5 Gender Mainstreaming ........................................................................................................................................ 82 8.0 TOWARDS HARMONISED POLICIES, LAWS AND REGULATIONS FOR TRANSBOUNDARY WATER RESOURCE MANAGEMENTS.............................................................................................................................................. 83 8.1 Introduction ....................................................................................................................................................... 83 8.2 Harmonization Principles...................................................................................................................................... 84 8.3 Building Blocks for Harmonized Policies, Laws and Regulations............................................................................ 86 8.3.1 Building Block 1: Cooperation in water resources management and development ......................................... 86 8.3.2 Building Block 2: Sustainable water resources development and management......................................................... 90 8.3.3 Building Block 3: Water for environment and ecosystem sustainability .......................................................... 96 8.3.4 Building Block 4: Water Quality Management and Pollution Control........................................................................ 99 8.3.5 Building Block 4: Water Quality Management and Pollution Control ........................................................... 101 8.3.6 Building Block 5: Security from water-related disasters ............................................................................. 103 8.3.7 Building Block 6: Water resources information, management and exchange ............................................... 105 6.4.8 Building Block 7: Institutional framework for water resources management ................................................. 107 8.3.9 Building Block 8: Stakeholder participation, awareness creation and capacity building ................................. 108 8.3.10 Building Block 9: Research and Development .......................................................................................... 110 8.3.11 Building Block 10: Financing integrated water resources management ....................................................... 110 8.4 Follow up actions.............................................................................................................................................. 112 REFERENCES ............................................................................................................................................................. 114

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List of Figures
Fig 1: Map showing the Lake Victoria and its catchment areas (Source WEMA, 2009) ..........................................4 Figure 2. New institutional setup of the Ministry of Water and Irrigation after the Water Sector Reforms in Kenya ....... 16 Figure 3 Institutional Framework ...................................................................................................................... 31

List of Tables
Table 1 Functions and Responsibilities for water Resources Management in Tanzania ...................................... 29 Table 2 Functions and Responsibilities for water Resources Management in Rwanda ....................................... 46

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LIST OF ABBREVIATIONS AND ACRONYMS ALGAK Association of Local Government Authorities of Kenya BWBs Basin Water Boards COWSOs Community Water Supply Organizations CSOs Civil Society Organizations CFA Cooperative Framework Agreement CBOs Community Based Organizations DANIDA Dennish International Development Agency EIA Environmental Impact Assessment EAC East African Community EFA Environmental Flow Assessment IWRM Integrated Water Resources Management LVBC Lake Victoria Basin Commission MDGs Millennium Development Goals MNRT Ministry of Natural Resources and Tourism MoLG Ministry of Local Government MOE Ministry of Education MAFC Ministry of Agriculture, Food Security and Cooperatives MOH Ministry of Health MOA Ministry of Agriculture NAEP National Agricultural Extension Policy NAWAPO National Water Policy NSGRP National Strategy for Growth and Reduction of Poverty NEMC National Environment Management Council NWB National Water Board NAFA National Forests Authority NILE COM Nile Committee of Ministers NELSAP Nile Equatorial Lakes Subsidiary Action Programme NBI Nile Basin Initiative NEMA National Environment Management Authority NGOs Non-Governmental Organizations NAEP National Agricultural Extension Policy OAU Organization of African Unity PPP Public Private Partnership PFM Participatory Forest Management RPSC Regional Policy Steering Committee RNRA Rwanda Natural Resources Authority RDAs Regional Development Authorities SIDA Swedish International Development Authority TANAPA Tanzania National Parks Authority UNCED United Nations Conference on Environment and Development UNDP United Nations Development Authority WPC Water Policy Committee WRD Water Resources Division WSRSC Water Sector Reform Steering Committee WRUA Water Resources Users Association WSSAs Water Supply and Sanitation Authorities WRM Water Resources MAnagement WSRSC Water Sector Reform Steering Committee WRD Water Resources Division

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EXECUTIVE SUMMARY Introduction Lake Victoria and other water resources in the basin have experienced severe threats that are impacting negatively on the socio-economic and intrinsic values, contributing to annual losses amounting to millions of dollars. Given the various types of potentially competing uses the Lake Victoria and other water resources in the basin are supporting, their sustainable management poses a challenging task. Although these resources require appropriate policy interventions, such as the ones proposed for regulating releases from the lake, their management also requires harmonised laws and regulations. Objective of the study The overall objective of the study is to harmonise policies, laws and regulations governing utilization of water resources in the Lake Victoria Basin among the EAC Partner States. Main Building Blocks To achieve these goals of a regional harmonized policy, legislation and institutional framework, 10 Building Blocks were adopted, these are: 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) Cooperation in water resources management and development Sustainable water resources development and management Water for environment and ecosystem sustainability Water Quality Management and Pollution Control Security from water-related disasters Water resources information, management and exchange Institutional framework for water resources management Stakeholder participation, awareness creation and capacity building Research and Development Financing integrated water resources management.

National Policies Laws and Regulation, and institutional frameworks pertaining to the process of harmonization were analyzed and reviewed based on the Building Blocks. Key issues and challenges were identified, as well as review of international treaties and protocols as well as regional organizations. Summary of Key Issues and Challenges Facing Lake Victoria Basin The Lake Victoria Basin is endowed with a variety of natural resources which are the main stay of communitys livelihood. However these resources are currently under increasing pressure and thus their survivals are in jeopardy. Some of the pressures facing the natural resources in the Lake Victoria Basin include over exploitation of resources, losses of habitats and biodiversity, increased water pollution, habitat degradation and climate change. In order sustainable water resources management to be attained in the basin; concerted efforts are required to address the challenges and major issues of concerns facing the basin. Here under are some of the issues and challenges which need to be seriously addressed in order to attain the envisaged sustainable water resources management in the basin. Controlling pollution: Pollution is one of the major challenges facing the Lake Victoria Basin. The situation is accelerated by poor farming practices which are responsible for soil erosion and thus water pollution and siltation of

water bodies. Improving farming practices to control pollution. Activities related to cutting of trees and other vegetation covers detract the ecological system responsible for filtering mechanisms. When this ecological system is disturbed, the land and environment in general is prone to degradation. Pollution of water bodies is also due to inappropriate use of agrochemicals, discharge of wastes and effluents into water bodies. Existence of alien invasive species is another factor which lead to pollution of water bodies. The species are responsible of affecting food webs of fish and other aquatic organisms. Controlling the alien invasive species is one of the major issue to be addressed. Enhancing good governance: Partner countries need to strengthen enforcement of laws and regulations so as to realize the intended objectives. Enhancing good will also strength rule of law and thus corruption and malpractices at all levels of riparian states and local governments will be minimized. This will result into adequate transparency and accountability in public decision-making. Poverty: Poverty is another challenge facing the residences in the basin. It is estimated that more than half of the lake basin population is living on an income of less than 1 USD per day and relying heavily on subsistence production. In addition there is high level of illiteracy and low skills and lack of socio-economic incentives to meet the challenges of water related management and development. Furthermore mortality rates are high due to various diseases such as, tuberculosis and waterborne diseases like malaria, typhoid and bilharzias. It is also apparent that access to health care services is inadequate and health facilities are not well equipped. Inadequate human and financial capacities: This is also one of the major challenges facing water resource management in the Lake Victoria basin. Although it is true that always there is resource scarcity, the situation in the basin is more serious since there is acute inadequate capacity to plan, implement and monitor water resources management and development activities. It is beyond reasonable doubt that investing in the development of human and institutional capacity is very important to enhance effective planning, implementation and monitoring of water resources management activities. Equally important to the aforesaid capacity is to have sustainable mechanism for soliciting financial resources to implement the planned activities. Sustainable allocation of water resources to various water needs: This is another challenges facing management of water resources management in the basin. The major concern issue is how best to allocate water for various economic activities and for sustaining the environment and other aquatic ecosystems. Data and information exchange: Despite the fact the protocol for sustainable development of Lake Victoria Basin, Treaty for establishing East African Community and other regional agreement emphasize the need of sharing and exchanging data and information as a strategy for improving planning of water resources management activities, the practice has shown that partner states are not sharing and exchanging data and information for their partner consumption. This is a major challenge that needs to be addressed critically. Climate change: Climate change is another of the emerging issue of concern which need great attention in the basin if sustainable management of water resources has to be attained. Climate change has been responsible in food insecurity and other catastrophes in the basin. Currently there are inadequate coping strategies to mitigate the impacts related to climatic change. Security from water-related disaster: Occurrence of water related disasters leaves many people and their properties in situation which takes time to recover. Availability of precautionary measures is very important as a preparedness mechanism to occurrence of water related disasters especially during this era of climatic change catastrophes. However currently there are inadequate mechanisms for protection from flood and drought; prediction, planning and management of natural disasters as well as provisions for dam safety management

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Inadequate understanding of the values and functions of the basin ecosystems: Many stakeholders residing in the basin has poor limited understanding on the values and functions of the basin ecosystem and this result to poor management of the resources therein. Better understanding of the values and functions of the basin ecosystems would enable stakeholders to understand the socio-economic importance of environmental conservation and thus would facilitate to have scientific decision making regarding the use of environmental resources in the basin Other issues of concerns: Limited capacity to enforce legislations, inadequate and overlaps of sectoral provisions, inadequacy of legal provisions to address environmental and natural resources management issues, majority of stakeholders particularly at grassroots have limited awareness of environmental laws, conflicts in the national policies, laws and regulations in the management of transboundary ecosystems. SWOT Analysis of the Existing Policy, Legal and Regulations Strengths (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) Weaknesses (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) Opportunities (i) (ii) Existence of EAC and Lake Victoria basin legal and institutional framework Existence of interested donors to work in the basin Inadequate funds allocated to water resource management by governments Inadequate institutional capacities at national, regional/province, district and local levels Inadequate sharing of important data on management of water resources Limited regional focuses on water resource management issues Weak enforcement of laws Transboundary water resources management policy, legal and institutional frameworks not well elaborated other than for Lake Victoria and Policy statements Multiple agencies with no clear framework of operations and thus creates conflicts and coordination challenges Inadequate innovative research activities on integrated water resource management Inadequate advocacy capabilities by civil society organization on water resource management All countries have water related policies, laws and regulations Existence of expertise and knowledge on national and regional programme planning and implementation Existence of national authorities with specific mandates related to water resource management Experience in transboundary cooperation framework under Nile Basin Initiatives and East Africa Community through the Lake Victoria Basin Commission Existence of sectoral policies with their associated laws and regulations Existence of integrated water resource management strategies in partner states Existence of participation framework for community and other stakeholders in implementation of water related management interventions Existence of EAC and NBI legal and institutional framework Existence of programmes for harvesting, storage and use of rain water as coping strategies to climatic change Existence of water use associations at community level Existence of educational and research institutions in the region

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(iii) (iv) (v)

Interests of the international community in attaining MDGs targets on integrated water resources management Potential mutual socio-economic benefits from joint win-win development interventions in the basin Common legal history evidenced in similar laws and the common law background facilitate harmonization process

Threats/Challenges (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) (xiii) (xiv) (xv) Adequate prioritization of transboundary water resources management cooperation among riparian countries Management of alien invasive species in lake Victoria basin and other water bodies Controlling of watershed degradation Development of effective climate change mitigation measures Accelerated destruction of water resource ecosystems. How best to carry out environmental flow assessment Delay in finalizing an agreement on the Nile Basin to address transboundary Nile Water resources policy and institutional framework, holistically, creating risks of desegregated and disjointed actions Have sustainable funding sources for water resource management activities Strengthen information sharing among partner states Strengthening capacity of local community groups so as to bring positive impact on water resource management Put in place effective mechanism for natural disaster and dam safety management Effective capacity building programme to enhance implementation of water resource management Advocacy on integrated water resource planning to enhance sustainability of water resources Enhance proper communication to avoid mistrust among partner state members Effective laws and regulations enforcement.

Proposed Policy Directions for each Building blocks Building Block 1: Cooperation in water resources management and development Economic integration from the use of transboundary water resources Water resources shall be developed and managed in an integrated manner to contribute to regional and national economic integration and development on the basis of balance, equity and mutual benefit for all riparian countries. In implementing this policy the reference point shall be the Shared Vision and the Protocol for Sustainable management and Development of the Lake Victoria Basin. Partner States shall endeavour to promote and exploit opportunities for joint water resources development in shared watercourses to maximize benefits from the use of common transboundary water resources and consolidate regional cooperation. Promote awareness of the people to understand the issues involved and the associated positive and negative impacts in order to cooperate. Water resources and inter-sectoral cooperation Promote proper communication /Awareness as an important tool to inform the people to understand issues in order to cooperate and obtain broad-based suport, and generation of broad-based partnerships. Regional and national institutions shall ensure the collaboration of all affected sectors in the management and development of water resources to achieve the goals of regional integration, upholding the principle of equitable utilization, aiming at poverty eradication enhancing economic growth and sustainability.

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Communication and collaboration Establish and institutionalize of two way communications between and among sectors, national and regional institutions and transboundary water resources management. Relevant Basins or Catchments should be strengthened to play day-to-day agreed activities. Develop and implementation of data and information sharing protocols. Promote publication dissemination of data and information to general public on the state of water resources and its use on regular basis. Develop regional and implementation of research findings. Conflict management mechanisms Promotion of transparent system of sharing information, costs and benefits that aim at building confidence and trust among the partner States. Establish mechanisms to resolve the existing and future conflicts among the various entities mandated to manage components of water resources. Promote incentive mechanisms for resolving water resource use conflicts. Provide regional stakeholder forum with diverse constituencies to share ideas and generate consensus on their priorities and interests to build confidence and trust. Uphold the principle of international cooperation on matters related to the utilization of transboundary water resources in order to mitigate conflicts, which may include the obligation not to cause significant harm to co-riparian, and notification and information sharing. Benefit sharing and equity consideration Promote equitable allocations of transboundary water resources that aim at enhancing sharing of benefits. Promote dialogues at the different levels from trasnboundary, national and local level; to ensure sustained progress and achievement of goals and objectives set out in the EAC Treaty and Protocol for sustainable management and Development of the Lake Victoria Basin. There is need to develop and promotemanagement tools for assessment, negotiation and sharing of benefits. Promote mechanisms for increasing awareness of for regional stakeholders on benefits and sharing of benefits. Building Block 2: Sustainable water resources development and management Water for Socio-Economic Development (water for food security, energy security, industrial security, water supply, sanitation and hygiene, etc) Partner states shall consider water as both (i) an economic good, which supports cross-sectoral regional economic integration and development, and shall be conserved, developed and managed to provide economic benefits, and (ii) a social good that is essential to human survival and social wellbeing and for poverty reduction. Partner states shall consider, when allocating water between states, economic sectors and users shall economic benefits that is balanced with social obligation and environmental requirements and the obligation to protect an conserve the water resources. In managing and developing the water resources of the Lake Victoria Basin, Partners States shall consider the concept of comparative advantage in water availability as a means of promoting intraregional trade and balancing national water budgets in a sustainable manner for the benefit of the regions population. When allocating water for socio-economic needs Partner States will uphold the following policies:

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Water Supply, sanitation and hygiene: Ensuring sustainable access to safe water supply for basic human needs in adequate quantity and quality. Water for basic human needs receives highest priority over any other allocations, water allocation for productive activities to poor and marginalised communities in rural and peri-urban to alleviate poverty and ensure balanced development, and facilitation of the provision of sustainable access to adequate sanitation for all rural, peri-urban and urban households which is integrated into the provision of water supply services. Public awareness, as well as hygiene education and practice should be integrated in the provision, operation and maintenance of water and sanitation facilities. Water for Food Security: Partner States shall promote the attainment of regional food security rather by developing those areas which have comparative advantage for rain-fed and irrigated (both small and large scale) agriculture through optimizing the use of water resources through integrated water resources management framework. This should also aim to increase production of food and cash crops in rural areas for sustainable livelihoods and poverty reduction through promotion of affordable and sustainable techniques for small-scale irrigation. While promoting the use of water for food and cash crop production, Partner States will promote measures to increase water use efficiency, and provide economic incentives for efficient use of water. Water for livestock watering and for maintenance of grazing land: shall receive adequate consideration in water resources allocations at regional, national and local levels. Water for Energy Production: Partner states will collaborate in optimizing the potential for hydroelectricity generation with a view of providing cheaper and more environmentally friendly sources of electrical energy for household and industrial uses. This will include development of both large scale, and small-scale hydropower to enhance rural electrification. Water for Industrial Production: Water for industrial purposes will be allocated considering its economic value. Water for Sports and Recreation: Water for sports and recreation will be accorded due consideration when allocating water for the various competing demands. Development and management of water resources by river basin approach In shared water resources Partner States will plan, develop and manage water resources by adopting a river basin or watercourse approach. Subsequently, Partner States jointly will prepare and implement integrated river basin management and development plans with full involvement of affected stakeholders, promote conjunctive use of surface and groundwater resources. The plans so jointly developed will be the basis for negotiations of water allocations between Partner States based on agreed based on equitable and reasonable mechanisms, with consideration of the position of the Lake Victoria Basin within the wider Nile so as to avoid undue conflicts. Partner states will ensure that shared water resources and the water uses upon them will be regulated through as a system of water rights/permits applicable at national level as stipulated in the agreed harmonized Regulations . Integrated Water Resources planning approach Transboundary water resources planning will be done on the basis of water basins using an integrated multi-sectoral approach and cross-cutting nature of the resource, involving stakeholders and which will consider requirements for bio-diversity and human health.

Partner States shall promote joint planning and implementation of development projects and programmes within their within their shared watercourses in transparent manner and notify each other and/or engage other watercourse States through agreed dialogue mechanisms, where such other water course States are not proponents of the projects. Water conservation and demand management Partner States will adopt a Demand Responsive Approach to water resources management will be introduced through the use of demand management approaches together with water conservation measures as a fundamental requirement for integrated planning and management of transboundary water resources. Development of dams Promote integrated planning, development and management of dams in order to optimise the use of the water resources, maximise derived benefits (such as hydropower, tourism, flood control, irrigation, water supply) and jointly address both positive and negative externalities. Promote the participation of all key stakeholders in decision-making in the process of dam development. Partner states will jointly prepare and negotiate on operating rules for dams on shared watercourses with a view of to optimise the socio-economic and environmental benefits in an equitable manner. Water allocation and water permits authorization Promote equal and fair procedures when allocating water so that all social and economic activities are able to maximize their capacities. The objective being to realize efficient water uses and conservation while improving productivity in all socio-economic activities and maintenance of the environment. Priority uses on transboundary water courses will be water for basic human needs and for sustaining the environment will attain highest priority, followed by water to meet social-economic needs which will be subject to agreed criteria and time to time revisions. Streamlining of environmental water requirements in the water allocation, permitting system, planning and designing and decision making. Building Block 3: Water for environment and ecosystem sustainability Water allocation for the environment/sustaining aquatic ecosystems Proposed Policy Direction Implement water resource management practices that will focus on preventing negative environmental impacts of human activity, ensuring that water is used beneficially and efficiently, and ensuring that water related activities aim at enhancing or causing least detrimental effect to the natural environment. Promote Environmental flow assessment (EFA) as a management tool that can assist the Basin Water Board to meet the challenges of balancing the diverse needs for water between the amount of water that can be withdrawn from a river for the different human uses and the amount of water that the river needs to sufficiently maintain ecosystems through multi-sector approach. Prepare national inventories on the condition and extent of wetlands, floodplains and riparian ecosystems, as a basis for ensuring their long term protection. Water allocation to sustain environmental flows should be mainstreamed in the water allocation system having determined actual needs. Addressing alien invasive species Partner States will work individually and collectively to control the alien invasive species. Water source protection Uphold the principle of the protection and preservation of the ecosystems of tranboundary watercourse within the Lake Victoria Basin;

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Uphold and promote the principle of community of interest in an international watercourse whereby all States sharing an international watercourse system have an interest in the unitary whole of the system. Climate change Develop capacity, Human resources and Institutional level, to cope with climate change and extreme events, including climate change analysis is included in planning for development projects/programmes. Promote science-policy dialogue to communicate research findings on climate change. Focus on water security, which requires sound water resources management and development, balance between hard and soft strategies, manage demand as well as increase supply and encourage rainwater harvesting. Infrastructure investments, and in particular storage, will be essential in many places in the region. Building Block 4: Water Quality Management and Pollution Control Water quality monitoring and assessment Water quality monitoring and assessment will be undertaken systematically so as to identify extent and status of the quality of the transboundary water resources so that problems are detected early and remedial actions taken timely. Water quality standards (receiving water quality standards, effluent discharge standards) Member States uphold common minimum standards of water quality in shared watercourses and pool available resources for their maintenance. Promote Environmental Impact Assessments (EIAs) for projects planned to utilize on transbounary water resources. Partners States shall avoid importation of pollutants from other countries into the region for disposal. Water pollution control Creation of public awareness in the importance of protecting water resources from pollution including that resulting from point and non-point sources. Practical and cost effective water quality and pollution control monitoring programs (including networks) will be developed and implemented. Factories, municipal authorities, large irrigation schemes and mining operations will be required to collect and keep accurate records of the quality of effluents and submit the same to relevant water management institutions. The "polluter pays principle shall apply in conjunction with other legal and administrative measures. Building Block 5: Security from water-related disasters Protection from floods and droughts Facilitate and coordinate the management of natural disasters associated with transboundary water resources. Member States shall commit themselves to protect human life, livestock, property and the environment against the effects of water related natural and human-induced disasters. Promote the development and implementation of Early Warning System for floods and droughts for national and regional use. Prediction, planning and management of natural disaster management Prepare an implement effective regional and watercourse strategies to improving the regions capacity in predicting water-related disasters associated with floods and droughts. Develop disaster preparedness responses measures at regional level for dealing with floods and drought

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disasters. Develop a framework that can enable early warning, prediction, planning and management of water related natural disasters and have contingency plans and resources available to minimize the impacts. Flood and drought monitoring stations and early warnings systems will be established so as to detect prospective floods and drought occurrences and disseminate information to the public in advance. Flood and drought control infrastructure, including dam safety measures, will be promoted, as will measures for impact mitigation against water resources pollution from accidental chemical pollution. Partner states State have an obligation to notify and share knowledge and information with affected watercourse States in the event of actual or pending water related disasters. Provisions for dam safety management Develop strategies for enhancing dam safety management. Strengthen capacity for dam safety management through development of appropriate safety guidelines and institutional capacities for enforcement of the guidelines. Comprehensive and objective assessment of the economic, social, and environmental impacts would be carried out and adequate mitigation measures put in place for implementation at regional and national levels. Building Block 6: Water resources information, management and exchange Data collection and information management Partner States will strengthen existing system of data collection, processing, storage and dissemination of various transboundary water resources data. Data quality Control will be an integral part of the data management system. Strengthen the operational capacity for data collection, management of information and assessment of water resources on the basis of simplified, practical needs of the basin. Promote information sharing through internet, websites need to be promoted. Some specific regional information and news can be posted on the website on a regular basis. As well, knowledge management strategy must be prepared for the benefit of the region. Data and information exchange Establish of an effective system of local and international exchange of information will be strengthened, with a view to increase knowledge and experience, efficiency, and collaboration. Promote timely sharing of relevant available information and data regarding the hydrological, hydrogeological, water quality, meteorological and environmental condition of shared water resources. Water resources assessment Promote establishment and cooperation in establishment of efficient hydrological, hydrogeological and meteorological data acquisition and dissemination systems related to transboudary water resources. Strengthen the capacity of national and regional hydrological agencies capacities for data analysis, information management and dissemination. Adopt compatible systems for transboundary water resources data and information acquisition and management. Building Block 7: Institutional framework for water resources management Structure and systems of management at national level (including river/water basin structures) Promote decentralised the management of water and the associated authority to the lowest appropriate level, while maintaining appropriate institutional arrangements for the management of shared watercourses.

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Promote appropriate institutional arrangements to enhance the stakeholder participation, gender in taking decisions on planning and management of transboundary water resources at national and local. Promote framework and structure for conflict resolution and ensure stakeholders participation. Develop scientific tools for conflict resolution backed with appropriate training. Proposed Monitoring and Evaluation system Partner states will promote the establishment and implementation of a transparent and independent monitoring and evaluation system for policy implementation in order to assess achievement of its development goals, objectives, strategies, programmes and institutional performance for transboundary water resources. Building Block 8: Stakeholder participation, awareness creation and capacity building Mechanisms for stakeholder participation at national level and regional levels Promotion of effective conflict resolution mechanisms at national and transboundary levels in which stakeholders will have a role to its development and implementation. Involvement and participation of stakeholders in planning, management and decision making at all levels. Existing capacities for participation in water resources management at national level Capacity building needs of regional and national intuitions will be identified and prioritized with a view to recommend appropriate intervention measures required to address these needs based on new approaches to water resources management which emphasize the integration of sectors, participation, comprehensiveness, and subsidiarity. Regional and national training institutions capacity will be strengthened to offer appropriate courses for new generation of well trained and skilled IWRM experts at national and regional level. Gender Mainstreaming for water resources management Gender mainstreamed in water resources use and management through capacity building, institutional strengthening and affirmative action in the composition of various groups in institutions related to water resource management. Ensuring that all units and all personnel within the system have the responsibility for ensuring involvement of both men and women in all aspects of programmes and policies on transboundary water resources. Incorporating gender concerns into the planning and decision making, and promotion of process. Building Block 9: Research and Development Demand-Driven Water Related Research and Technology Development Adopt effective and efficient demand-driven water sector research and technology development in the Region and promote the use of research outcomes Strengthen existing national and regional individual researchers and research institutions, and improved communication and collaboration between research institutions. Promote publication, dissemination and implementation of research findings Promote complementary production of goods among Partner States. Building Block 10: Financing integrated water resources management Sources of funds for water resources management Partner states will ensure the collection of adequate fees/charges from water abstraction and use of transboundary water resources for economic purposes, as will the discharge of effluents. The level of abstraction and discharge charges and the criteria to be used in setting such charges will be subject to

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regular review and approval based on criteria and guidelines established by Partner States. The funds so generated will be used by the Partner States for water resources management in their respective countries. Special cconsideration will be given to requirements of the poor and the vulnerable. Financial Sustainability for water resources management Partner States will determine the criteria and guidelines for transboundary water resources management based on: (i) (ii) Evaluation of economic value of water resourcesrivers, lakes, swamps/major wetlands, and sensitive catchment areas where competition for scarce water resources is apparent; which would support economic water allocation principle. Determination of financing needs for water resources management and development for all water using and water impacting sectors at all levels-national (and trans-boundary), catchment, sub-catchment and user levels. Financing needs for water resources development (WRD) may include investments in infrastructure (for flood control, hydropower generation, irrigation, urban and rural domestic water supply, industrial and livestock water supply, sanitation and sewerage, industrial wastewater treatment, etc) and associated institutions. Financing needs for water resources management (WRM) may include institutions, systems and infrastructure for allocating water, controlling pollution and managing water quality, and protecting water resources at the basin, national and trans-boundary levels. Financing sources

(iii)

xv

1.0 1.1

INTRODUCTION Background

Lake Victoria and other water resources in the basin have experienced severe threats that are impacting negatively on the socio-economic and intrinsic values, contributing to annual losses amounting to millions of dollars. This has resulted in serious impacts on water resources dependent economic activities such as: declined electricity production at Jinja by 30% in December 2005; rendering the fish landing structures constructed to ensure good quality of fish useless; and severely affecting the intakes of the water treatment plants in Kisumu, Entebbe, Mwanza and other riparian towns resulting into a decrease in the amount of water supply. Given the various types of potentially competing uses the Lake Victoria and other water resources in the basin are supporting, their sustainable management poses a challenging task. Although these resources require appropriate policy interventions, such as the ones proposed for regulating releases from the lake, their management also requires harmonised laws and regulations. The governments of the five East African Community partner states; Burundi, Kenya, Rwanda, Uganda and Tanzania are making serious efforts towards addressing water resources related challenges in their respective countries but also to utilize the transboundary water resources for social and economic benefits of the region These efforts have included, firstly, developing and strengthening of their national policies, institutional frameworks, and laws and regulations which are essential to meet the existing and emerging water resources challenges, and, secondly, regional cooperation to jointly address transboundary threats and challenges and to seek opportunities of the shared water resources. Burundi is in the process of developing its national water policy, Rwandas policy of 2011 is in the final stage of approval. Kenya developed Sessional Paper No. 1 of 1999 on National Water Policy on Water Resources Management and Development. Uganda had its National Water Policy 1n 1997; and Tanzania replace its 1991 Water Policy with National Water Policy 2002. All the polices promote comprehensive water resources management and development framework. In East Africa and Lake Victoria Basin in particular, water plays a central role in social and economic development process of the riparian states. It touches all sectors of the economy including domestic, agriculture, livestock, fisheries, wildlife, industry, energy, and recreation. It also plays pivotal role in poverty alleviation. Apart from sustaining a rich diversity of natural ecosystems, the regions water resources are critical for meeting the basic needs related to water supplies for domestic and industrial requirements, and for sanitation and waste management for its people. The East African states after signing the EAC Treaty in 1999 declared the Lake Victoria Basin as an Economic Growth Zone. They have a commitment to develop the Lake Basin in a coordinated and sustainable manner. Realization of the great potential for sustainable social, economic and environmental development a shared Vision and a common framework for the development of policies and strategies emerged. The Project to review and harmonize regional policies, legal and institutional frameworks governing utilization of water resources falls under the Lake Victoria Basin Commission Secretariat comprising of the five EAC Partner States of Burundi, Kenya, Rwanda, Tanzania and Uganda. It is implemented through the Lake Victoria Environment Management Project Phase II. The Regional Policy Steering Committee (RPSC) oversees overall implementation and provides policy guidance to the Project. Development of harmonized policy, legal and institutional framework will certainly promote regional cooperation and integration with riparian states.

1.2

Objectives of the assignment

The overall objective of the study is to harmonise policies, laws and regulations governing utilization of water resources in the Lake Victoria Basin among the EAC Partner States. Specific Objectives The specific objectives of the consultancy are to: (i) (ii) (iii) (iv) (v) (vi) Analyse and Review the existing policies, laws and regulations governing the management of transboundary water resources with a view to identifying policies, laws and regulations that require harmonisation; Review the existing capacity of national and local institutions in the management of transboundary water resources; Review existing participation of communities and other stakeholders in the management of transboundary water resources; Prepare proposed harmonised policies, laws and regulations based on (i) above; Review the regional and national institutional arrangements in the implementation of the proposed harmonised policies, laws and regulations. Develop an action plan for implementing the proposed policies, laws and regulations including but not limited to EAC approval process, timeframe for transformation and the financial implications.

The harmonized transboundary water policy, legal and institutional framework would support the EAC states goal of regional integration and poverty eradication, and provide a long term perspective for achieving the objectives of socio-economic development, food security, energy security, industrial development, sustainable environment and security against natural disasters such as floods and droughts. The underlying development framework is integrated water resources management (IWRM) using the tools of planning, water resources information management, sector institutions, capacity building and stakeholder participation, environmental management and conflict resolution. To achieve these goals of a regional harmonized policy, legislation and institutional framework, it will be critical to review principles governing national and or transboundary policies/legislation addressing specific building blocks which may include the following: Building Block 1: Cooperation in water resources management and development Building Block 1: Sustainable water resources development and management Building Block 1: Water for environment and ecosystem sustainability Building Block 1: Water Quality Management and Pollution Control Building Block 1: Security from water-related disasters Building Block 1: Water resources information, management and exchange Building Block 1: Institutional framework for water resources management Building Block 1: Stakeholder participation, awareness creation and capacity building Building Block 1: Financing integrated water resources management

1.3

The Approach and Methodology

The review focused on the policies, laws, regulations and institutional arrangements for transboundary water resources management and development in the riparian countries of Lake Victoria Basin on the basis of sound and detailed technical-analytical analysis. The differences and similarities in policies, laws and regulations governing transboundary water resources in the EAC Partner States were identified and harmonized within the framework of

the 9 building blocks shown above. Furthermore, the consultant has examined stakeholder participation in the management of transboundary water resources at all levels. In carrying out the tasks, a consultative and participatory process was been adopted. Consultative meetings shall be held with the whole range of officials from the EAC member state including senior officials of with the LVBC. 1.4 Outline of the Report

Chapter 1 is the introductory chapter which gives the background to assignment and outlines the general approach and methodology adopted. Chapter 2 is an overview presents an overview which details main Features of the Lake Victoria Basin and outlines key Transboundary water resources Issues. Chapter 3 provides an analysis an review of existing national policies, laws and regulations Chapter 4 review of existing reginal and international treaties, protocols, conventions and agreements. Chapter 5 gives a review of the existing capacity of national and local institutions for the management of transboundary water resources.

Chapter 6 review of the regional and national institutional arrangements for the implementation of the proposed harmonised policies, laws and regulations Chapter 7 discusses participation of communities and other stakeholders in the management of transboundary water resources. Chapter 8 presents proposed approach to lead to the harmonised policies, laws and regulations for transboundary water resource managements. Proposed policy statements for each of the Building Blocks are also presented for consideration.

2.0 2.1

OVERVIEW OF THE LAKE VICTORIA BASIN Introduction

Lake Victoria, the largest of all African Lakes, is also the second widest freshwater Lake in the world. It is a major shared resource of the five EAC Partner States. Its extensive surface area of 68,000 km2 is shared by three countries, namely, Kenya (6%), Uganda (43%) and Tanzania (51%). The drainage basin is relatively small, about 193,000 km2 extending into Republics of Rwanda and Burundi. It is estimated that about 35 Million people live within the Basin.

Fig 1: Map showing the Lake Victoria and its catchment areas (Source WEMA, 2009)

2.2

Main Features of the Lake Victoria Basin

The Lake is a major trans-boundary natural resource that is heavily utilized by its riparian countries for fisheries, transportation, tourism, water supply and waste disposal. In terms of its volume, Lake Victoria contains about 2,750 cubic kilometers of water. The lake receives in approximation 82% of the water from precipitation directly falling on the lake surface with stream-flow and basin run off contributing just 18%. It has a maximum depth of 84 metres and an average depth of 40 metres. Lake Victoria supports Africa's largest inland fishery. Despite that there is considerable fluctuation in annual rainfall in the catchments area; the Lake is a major source of water for domestic, industrial, agricultural and recreational activities as well as securing conservation of the biodiversity and the ecosystem functioning of large wetland and forest areas. These ongoing activities have exerted enormous pressure to the water as far as experiencing short-term few-meter fluctuations in the lake level in years of high precipitation or drought. The ecosystem of the basin is fragile caused by a wide range of ongoing socio-economic activities that constraint its management and development. These ecosystems have come under increasing stress that gives rise

to considerable concerns among them; increased pressure on resources, losses of habitats and biodiversity, increased water pollution and general degradation of the environment. The Basin features unique ecosystem sustaining rich biological biodiversity of flora and fauna. The sub-catchments within the basin contain various interacting micro-ecosystems that play major role in maintaining and conserving biodiversity. The basins wetlands are suffering from overuse and destruction caused by increasing population, socio-economic activities and degradation. Wood harvesting, shelter construction, removal of material for handicrafts, waste dumping, increased run off pollution, and excavation of sand and clay said to aggravate the situation. Some recent remote sensing assessments of wetlands show change of conservation to intensive agriculture and reclamation of land for new settlements and road constructions. These activities have hydrological consequences, leading to increased flood hazards and loss of vegetation cover especially in the floodplains. The population in the basin engages in various activities ranging from subsistence livelihoods to industrial activities discharging waste into the Lake. Coupled with inputs of nitrogen and phosphorus from atmospheric deposition and nutrient inputs from land, tributary watersheds give rise to excessive nutrients in the water detrimental to aquatic life. The Lake Basin is endowed with natural resources that the communities exploit to sustain their livelihoods. These natural resources have shaped the production and income generating activities of the communities. Apart from supporting wellbeing, there are a number of Threats and challenges to the Lake Victoria Basin which include degradation of water bodies due to over-abstraction, encroachment on the catchments areas, destruction of filtering mechanisms, discharge of agro-chemicals, waste and refuse to water bodies and increasing population with intensified socio-economic development that exert pressure on these resources, as well as decrease in fish biodiversity and altered food webs. More recently the water hyacinth is believed to be a major reason for the alteration of many communities of aquatic and terrestrial species associated with the lake, the changes that are also strongly affecting the harvesting of aquatic resources. This is further aggravated by changes in water quality, nutrient cycling and food web structure consequently leading to a decrease in the fish biodiversity.

3.0

ANALYSIS AND REVIEW OF THE EXISTING NATIONAL POLICIES, LAWS AND REGULATIONS 3.1 Kenya National Policy and Legal Framework

3.1.1 Kenya Water Related Policies The overall Government policy for the water sector Kenya is geared towards devolving policy implementation to relevant stakeholders, especially local communities and the private sector. This approach is detailed in the government Strategy for Performance Improvement in the Public Service and the policy on reforms and privatisation of public enterprises. Under this new policy dispensation, the role of the Ministry will be refocused towards policy formulation, co-ordination, support in resource mobilization and sector regulation. A summary of the existing policy framework for the water sector is given below. The Constitution of the Republic of Kenya, 1998 The Constitution is the supreme law of the land that lays the fundamental principles for the governance of the country. However, the current constitutional does not have explicit provisions dealing directly with environmental and natural resources management and conservation. All the provisions dealing with the conservation of natural resources are to be found in the laws enacted under the Constitution. The need to include provisions in the countrys supreme law dealing with natural resources conservation was recognized by the proposed new Constitution, 2005, which included extensive provisions dealing with natural resources management. This proposed Constitution was not approved at the referendum held in November 2005 and is pending review. National Water Policy, 1999 The Kenya Government developed the Sessional Paper No. 1 of 1999 on National Water Policy on Water Resources Management and Development, which sets out the policy direction in the management and development of the water resources in the country. The policy paper adopted the following four specific principles to guide the activities in the water sector in addressing the challenges facing the sector: (i) (ii) (iii) (iv) (v) Preserve, conserve and protect available water resources and allocate it in a sustainable, rational and economical way. Supply water of good quality and in sufficient quantities to meet the various water needs, including poverty alleviation, while ensuring safe disposal of wastewater and environmental protection Establish an efficient and effective institutional framework to achieve a Systematic development and management of the water sector. Develop a sound and sustainable financing system for water supply and sanitation development. Based on the above principles, the sessional paper sets out the framework that is intended to promote comprehensive water resources management and development with the private sector and community participation as the prime movers in the process to guarantee sustainability. Despite its comprehensiveness, the Water Policy does not have specific provisions for transboundary water resources management and therefore does Not give any policy direction on the management of shared water resources. In Order to address this policy gap, government, in 2002, embarked on the process of preparing a specific policy on the utilization of shared water resources (specifically, Lake Victoria water resources). A draft policy has been prepared and is still going through the review process by the relevant

(vi) (vii) (viii)

government organs. The draft Policy is consistent with the Protocol for the Sustainable Development of the Lake Victoria Basin and the yet to be concluded Nile River Basin Cooperative Framework. National Environment Management Policy Kenyas efforts to develop a policy paper on environmental and natural resources management have not yet reached fruition. In 1999, the then Kenyan Ministry in charge of environmental management developed a Sessional Paper on Environment and Sustainable Development. The Sessional Paper was not presented to Cabinet for approval, neither was it presented to Parliament for debate and approval. Therefore, it was not published, and remains unofficial to his day. Despite the lack of an explicit environment management policy, government still emphasises sustainable and environmentally friendly development and as a deliberate and conscious policy, promotes sound environmental management for sustainable development. This is achieved through the principle of prudent use, which requires that the present day usage of environmental resources should not compromise the needs of future generations. Proper environmental management has been a top priority for the Government since independence, the National development plan of 1979 states Environmental considerations must pervade development decisions at every level. In an effort to conserve the environment the Government established the National Environmental Management Authority (NEMA) through the Environmental Management and Co-ordination Act (EMCA) of 1999, to exercise general supervision and co-ordination over all matters relating to the environment. EMCA entitles each and everyone to a clean environment but also requires us to safeguard environmental quality. The sessional paper envisages the use of the polluter pays principle, where one is expected to make good any damage made to the environment. The paper emphasises the fact that prospects for Kenyas long-term growth are dependent on effective management of its resources and the conservation of the environment. The paper, therefore, defines the following strategic objectives for sustainable environmental management: (i) (ii) (iii) (iv) (v) To create an enabling environment through policy, legal and regulatory reforms for environmental and natural resources management. To protect, conserve, and sustainably manage the environment and natural resources. To generate knowledge and technologies towards sustainable management of the environment and natural resources. To strengthen capacity in the environment and natural resources management. To mainstream environmental concerns into overall planning and implementation of programmes and projects.

National Wetlands Policy Kenya has not yet developed a Wetlands Management Policy. The process for developing a wetlands management policy has been initiated, though it is still in the early stages. The Kenya Wildlife Service presently manages wetlands protected under the RAMSAR Convention. NEMA and the WRMA both have jurisdiction over specific wetlands, each arising from its respective statute. The WRMA is currently in the process of gazetting rules dealing with the management of wetlands. Kenya Forest Development Policy The policy framework for forest development and management in Kenya is provided for under the Kenya Forest Development Policy Sessional Paper No.9 of May 2005 whose objectives include the following: Contribute to poverty reduction, employment creation and improvement of livelihoods through sustainable use,

conservation and management of forests and trees. (i) (ii) (iii) (iv) (v) (vi) (vii) Contribute to sustainable land use through soil, water and biodiversity conservation and tree planting through the sustainable management of forests and trees. Promote the participation of the private sector, communities and other stakeholders in forest management to conserve water catchment areas, create employment, reduce poverty and ensure sustainability of forest sector. Promote farm forestry to produce timber, wood fuel and other forest products. Promote dry land forestry to produce wood fuel and to supply wood and non-wood products. Promote forest extension to enable farmers and other stakeholders to benefit from forest management approaches and technologies. Promote forest research, training and education to ensure a vibrant forest sector. The above policy objectives affect conservation of water catchment in one way or another.

National Irrigation Policy Preparation of the National Irrigation Policy and other related legislations is an exercise that is ongoing currently in the Ministry of Water and Irrigation. The policy direction is for the government to move from implementation of the policy and let communities, the private sector and other sector stakeholders to play a bigger role. This policy aims at achieving sustainable development and management of the irrigation and drainage sector by addressing the following objectives: (i) (ii) (iii) (iv) (v) To fully develop the irrigation and drainage potential in the country for economic development. To effectively regulate, coordinate and manage all activities within the irrigation sub-sector. To create an appropriate financing system that will attract investment into the sector. To create an enabling environment for effective participation of the farmers organizations and other stakeholders in the provision of quality and cost-effective support services, and To enhance a multi-sectoral approach to irrigation research and development involving government, private, civil society and communities.

It is anticipated that, with the development of this policy, recognition that communities and the private sector offer invaluable potential to attainment of accelerated development within this sub-sector will be achieved. In the absence of an irrigation policy, the Ministry of Agriculture has developed guidelines for the development, operation and management of smallholder farmer-managed schemes. The Irrigation Development Board has developed guidelines and manuals to direct the development of smallholder irrigation and the process of community participation for sustainable development. Irrigation, drainage and water use for agriculture is hampered by the lack of a national irrigation policy and plan, which leads to haphazard irrigation development with limited coordination among the various institutions. This is further exacerbated by the evidently inequitable spatial and temporal water distribution within the country. National Agricultural Extension Policy, 2001 The National Agricultural Extension Policy (NAEP) of December 2001 proposed to improve the management of extension services both in the public and private sector by promoting decentralization of decision making, intersectoral planning, monitoring and evaluation and increased community involvement in extension programmes and projects. National Land Policy Government is in the process of formulating strategies and policies to provide security of tenure and access to land

for the poor. Insecure land tenure systems have led to low investments in land improvement and productivity. Therefore, the draft Land policy has recommended that the Government should provide secure tenure to ensure access to land by rural poor for production purposes. National Gender Policy Kenya does not have a national gender policy, and gender issues are addressed using a variety of legal and policy provisions. The existing laws provide for equal rights and privileges to both men and women. However, their interpretation through common laws and social conventions often leads to difficulties and their being compromised. 3.1.1 Review of water related laws and regulations The Constitution of the Republic of Kenya, 1998 The Constitution is the supreme law of the land that lays the fundamental principles for the governance of the country. However, the current constitution does not have explicit provisions dealing directly with environmental and natural resources management and conservation. All the provisions dealing with the conservation of natural resources are to be found in the laws enacted under the Constitution. The Water Act, 2002 Following the adoption of the National Water Policy in 1999, the Government embarked on a legal and institutional process, which culminated in the enactment in July 2002 of the Water Act, 2002. This Act replaced the Water Act, Chapter 372. The Act was enacted with the following objectives. (i) (ii) (iii) (iv) (v) To separate the institutional framework for managing water resources from that dealing the provision of water supply in order to accord due attention to the management of water resources; To create autonomous regulatory institutions to regulate the management of water resources and another similarly autonomous institution to regulate the provision of water services; To decentralize water resources management to catchment areas; To provide for local and user groups involvement in water resources management and for conflict resolution; and To introduce fees for the abstraction and use of water resources.

The Water Act 2002 came into effect in 2003, when the establishment of the institutions provided for in the Act commenced. The Act provides for regulations to supplement its provisions. Most of the regulations have not yet been gazetted, although work of draft regulations is at an advanced stage. It is therefore likely that the legal framework will evolve further with the gazettement of the regulations. Section 3 of the Water Act vests every water resource in the State. Section 2 defines Water resource to mean any lake, pond, swamp, marsh, stream, water course, estuary, aquifer, artesian basin or other body of flowing or standing water, whether above or below ground. Section 4 makes it the duty of the Minister to have and exercise control over every water resource, specifically to the promote the investigation, conservation and proper use of water resources throughout Kenya Water Resources Management Section 7 of the Act creates the Water Resources Management Authority (WRMA). WRMA is responsible for the regulation of the use and management of water resources. A key aspect of this mandate is the allocation of water resources through a permit system. The framework for the exercise of the water resources allocation function comprises the development of national and regional water resource management strategies, which are intended to outline the principles, objectives and procedures for the management of water resources.

The Act provides a role for user groups, organized as water resources users associations, in the management of water resources. Section 15(5) states that these associations will act as for a conflict resolution and cooperative management of water resources. Management of protected areas is provided for in section 17. This stipulates that where the WRMA is satisfied that special measures are necessary for the protection of a catchment area it may, with the approval of the Minister; declare such an area to be a protected area. The WRMA may then impose requirements and regulate or prohibit conduct and activities in the area. Water Resources Strategic Planning The Act provides for the formulation of water resources management strategies at national level and at catchment area level. Under section 11 the Minister shall formulate a national water resources management strategy, and shall periodically review it. Under section 15 the WRMA shall formulate for each catchment area, a catchment area management strategy, which shall be in line with the national water resources management strategy. Whereas as draft national water resources management strategy has been formulated, no catchment area management strategy has been formulated as yet, although it is understood that work on this has started within the WRMA. The Act defines the reserve to mean the quantity and quality of water required (i) To satisfy basic human needs for all people who are or who may be supplied from the water resource; and (ii) To protect aquatic ecosystems in order to secure ecologically sustainable development and use of the water resource. Classification of water resources is dealt with in section 12. This states that the Minister shall prescribe a system for classifying water resources for the purpose of determining resource quality objectives for each class of water resource. Under the prescribed classification system, water resources may be classified according to type, location, and geographical or other factors. Regulation of Water Use Another important regulatory instrument is the water permit, which is required for the use of water. Section 6 states that: No conveyance, lease or other instrument shall be effectual to convey, assure, demise, transfer, or vest in any person any property or right or any interest or privilege in respect of any water resource, and no such property, right, interest or privilege shall be acquired otherwise than under this Act. In order to use water, a permit is required. Indeed the Act states that it is an offence to use water from a water resource without a permit. There are however three exceptions to the permit requirement. These relate to: (i) (ii) (iii) Minor uses of water resources for domestic purposes; Uses of underground water in areas not considered to face groundwater stress and therefore not declared to be groundwater conservation areas; Uses of water drawn from artificial dams or channels, which being artificial rather than natural - are not considered to be water resources of the country.

The application for the permit is made to the WRMA. Section 32 stipulates the factors to be taken into account in considering an application for a permit. Applications for permits are required to be subjected to public consultation. Accordingly the application shall be advertised in the print and electronic media and an opportunity given to those who wish to make comments or lodge objections to do so. Permits are given for a specified period of time. Additionally, the Authority is given power to impose a charge for the use of water. The charge may comprise both an element of the cost of processing the permit application as well as a premium for the economic value of the water

10

resources being used. Charging a premium for the use of water resources represents the use of charging as a mechanism for regulating the use of water. It is made possible by the fact that ownership of water has been vested in the State, which is entitled to grant and administer the right to use water resources. Permits run with the land. Section 34 requires that a permit specify the particular portion of any land to which the permit is to be appurtenant. The permit passes with the land on transfer or other disposition. Where the land on Which the water is to be used does not abut on the watercourse the permit holder must acquire an easement over the lands on which the works are to be situated. It is thus not possible, under the law, to obtain a permit in gross (i.e. which is not linked to particular land). Environmental Management and Coordination Act, 1999 The institutional and management framework set up by the Environmental Management and Coordination Act, (EMCA) enacted in 1999, also has implications for the integrated management of trans-boundary water resources. The focus of the Act is primarily directed at environmental and natural resources management. Section 2 defines the environment to include water. Consequently the provisions of the Act apply directly to the integrated management of water resources. Substantively, EMCA provides for the management of the environment with a view to achieving sustainable land use, an objective shared also by the other laws affecting water resources management. Part V of EMCA deals with the protection and conservation of the environment. Section 42 provides for the protection of rivers, lakes and wetlands. Section 44 deals with the protection of hilltops, hillsides, mountain areas and forests so as to protect water catchments areas, prevent soil erosion and regulate human settlement. Section 45 provides that every District Environment Committee shall identify the hilly and mountainous areas under their jurisdiction that are at risk from environmental degradation because: (i) (ii) (iii) (iv) It is prone to soil erosion; Landslides have occurred in such an area; Vegetation cover has been removed or is likely to be removed from the area at a rate faster than is being replaced; or Any other land use activity in such an area is likely to lead to environmental degradation.

Section 47 provides that the Authority shall, in consultation with relevant lead agencies, issue guidelines and prescribe measures for the sustainable use of hilltops, hillsides and mountainous areas to be implemented by the District Environment Committee. These may include measures relating to: (i) (ii) (iii) (iv) (v) (vi) (vii) Appropriate farming methods; Carrying capacity in relation to animal husbandry; Measures to curb soil erosion; Disaster preparedness; The protection of these areas from human settlements; The protection of water catchment areas; Any other measures the Authority considers necessary.

The centrepiece of EMCA is the requirement for Environmental Impact Assessment (EIA) and environment audit, which are introduced in Parts V and VI respectively of the Act. Among the projects included in the Schedule for projects to be subjected to EIA are dams, rivers and water resources. The procedural requirements for EIA are set out in the Environmental (Impact Assessment and Audit) Regulations of 2003. EIA and auditing is an important regulatory tool, enabling pre-emptive action to be taken to avoid and mitigate the

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potentially adverse impacts on the environment of proposed or ongoing projects. Its inclusion as a legal requirement is an important step towards realizing the objectives of sound environmental management. That having been said, it is worth pointing out that as contained in EMCA, the EIA and audit requirement suffers from a number of limitations in its capacity to ensure that trans-boundary water resources are managed in an integrated and environmentally sustainable manner. The Agriculture Act The Agriculture Act3, has significant provisions on the management of water resources generally and catchments in particular. The aim of the Agriculture Act is to promote and maintain a stable agriculture sector, to provide for the conservation of the soil and its fertility and to stimulate the development of agricultural land in accordance with the accepted practices of good land management and good husbandry. Part IV of the Agriculture Act deals with the preservation of the soil and its fertility and gives the Minister powers to take action designed to preserve the fertility of the soil. Section 48 provides that whenever the Minister considers it necessary or expedient to do so for the purposes of the conservation of the soil of, or the prevention of the adverse effects of soil erosion on, any land, he may, with the concurrence of the Central Agricultural Board, make rules for prohibiting, regulating or controlling: (i) (ii) (iii) The breaking or clearing of land for the purposes of cultivation; The grazing or watering of livestock The firing, clearing or destruction of vegetation including stubble.

The Act provides further empowers the Minister where necessary to make rules for: The protection of land against storms, winds, rolling stones, floods or landslips. The preservation of soil on ridges, or slopes or in valleys. Preventing the formation of gullies 3 Chapter 318 Laws of Kenya (i) (ii) (iii) (iv) The protection of the land against erosion or the deposit thereon of sand, stones or gravel The maintenance of water in a body of water. The protection of roads, bridges, railways or other lines of communication The preservation of the soil and its fertility.

The minister is also empowered to require, regulate or control: (i) (ii) (iii) The afforestation or re-afforestation of land The protection of slopes, and catchment areas The drainage of land, including the construction ,maintenance or repair of artificial or natural drains, gullies, contour banks, terraces and diversion ditches.

The minister may require the uprooting or destruction, without payment of any compensation, of any vegetation, which has been planted in contravention of a land preservation order. The minister may also make rules requiring the supervision of unoccupied land. He/she may also make rules prohibiting, restricting or controlling the use of land for any agricultural purpose including the de-pasturing of stock. Part V of the Act deals with the development of land. Section 64 stipulates that the Minister may make orders (referred to as land development orders) requiring the execution in respect of any agricultural land by owners or occupiers of development programmes. Development programmes mean the adoption of such a system of management or farming practice or other system as the Central Agricultural Board may consider necessary for the proper development of the land for agricultural purposes. Part XII provides that the Minister may make rules for the preservation, utilization and development of agricultural land. Such rules may-:

12

(i) (ii) (iii) (iv) (v)

Require owners to manage land in accordance with rules of good estate management Require occupiers to farm land in accordance with the rule of good husbandry Regulate, control or prohibit the cultivation of land or the keeping of stock Regulate the kinds of crops which may be grown on land Empower local authorities to make rules.

Part XIII deals with the Ministers powers to dispossess owners or occupiers of agricultural land in cases of persistent contravention of rules. Section 185 gives the Minster power, where the occupier is not the owner of the land, to terminate his interest in the land and require that the owner farm it himself or let it to another tenant. Where the occupier is the owner of the land the Minister shall have the power to direct that he give up his occupation of the land and let it to a tenant approved by the Central Agricultural Board; or to agree with the owner or the purchaser of the land; or to acquire the land compulsorily. Section 187 gives the Minister powers with respect to inadequately managed land to make a management order directing that the holding be occupied and managed by the Minister to the exclusion of the owner. The Minister may also lease, or sell the land. The Agriculture (Basic Land Usage) Rules have been made in line with the provisions of Part XII of the Act. Rule 3 seeks to protect land with a slope exceeding 35%. It provides that any person who cultivates, cuts down or destroys any vegetation or de-pastures any livestock on any land of which the slope exceeds 35% shall be guilty of an offence. However, an authorized officer may authorize an owner to cultivate, de-pasture, cut down or destroy vegetation on the land subject to conditions as he may decide. Rule 4 provides that an authorized officer may prohibit cultivation or cutting down or destruction of vegetation on any land of which the slope exceeds 20%. Rule 5 provides that any person who cultivates any land of which the slope exceeds 12% but does not exceed 35% when the soil is not protected against erosion by conservation works shall be guilty of an offence. Rule 6 provides that any person who, except with the written permission of an authorized officer, cultivates or destroys the soil, or cuts down any vegetation or de-pastures any livestock on any land lying within 2 metres of a watercourse, or in the case of a watercourse more than 2 metres wide, within a distance equal to the width of that watercourse to a maximum of 30 metres shall be guilty of an offence. The Fisheries Act The Fisheries Act, Chapter 378 governs the management and exploitation of fisheries resources in Kenya. The Act vests ownership of fisheries resources in the central government. The overall objective of the Act is providing for the development, management, exploitation, utilization and conservation of fisheries. To manage fisheries it provides for closed seasons; prohibited fishing areas; limitations on the methods of gear; limitations on the amount, size, age and other characteristics and species of fish that may be caught; management of fish landing areas; the control of aquatic plants in fishery waters and registration and licensing of fishing vessels. Accordingly, rights to harvest fisheries resources are defined in the law and granted to individual fishermen through a licensing system on an annual basis. Fishing without a licence was criminalized as an activity, with the result that many local community members find themselves on the wrong side of the law, for carrying out a normal subsistence activity. For management and administration, the statutes establish a central fisheries management body, the Fisheries Department, which works through district offices. More recently, there has been a re-examination of alternative management approaches, particularly approaches based on co-management incorporating the participation of resources users, in the management system. The Physical Planning Act This Act replaced statutes that earlier dealt with land use planning. It provides for the preparation and implementation

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of physical development plans, which are critical in setting out the nature and extent of use, which may be carried out in particular areas. Section 16 provides that a Regional Physical Development Plan may be prepared by the Director of Physical Planning with reference to any Government land, private land or trust land within the area of authority of a county council. Under section 23 the Director may declare an area with unique development potential or problems as a special planning area. The Director may also suspend for a period of not more than two years any development he deems necessary in a special planning area for a period of not more than two years. The Director may prepare with reference to any Government land, trust land or private land a local physical development plan. Section 29 of the Act places development control in the hands of local authorities who consider applications for development permission. Whereas the Physical Planning Act could provide a basis for the management of catchments, on the whole, it has not been the practice in Kenya to carry out land use planning with respect to rural areas, and with respect to agricultural activities, which have the heaviest impact on catchments and on water resources. Nevertheless the potential exists to use physical planning as a mechanism for water resources management. Lake Basin Development Authority Act4 The Act provides for the establishment of Regional Development Authorities (RDAs) and empowers them to undertake planning for the proper use, conservation and development of natural resources at catchment level and to coordinate development in their respective catchment areas. The main Chapter 442 of the Laws of Kenya functions of the RDAs are primarily to plan for and coordinate the development of the respective areas in the country and to initiate development activities identified through such planning. These functions are standard for all the regional development authorities, and most are to be found in section 8 of the LBDA Act. Wildlife (Conservation and Management) Act5, Cap 376 The Wildlife (Conservation and Management) Act deals with the management of wildlife. It provides for the establishment of game parks and reserves and prohibits activities that might hamper the proper management of wild animals. These include activities such as deforestation, cultivation of land within a national park and so on. These provisions have relevance to water resources management to the extent that protected wildlife areas are often significant water catchments. The Act was amended in 1989 to provide for the establishment of Kenya Wildlife Service (KWS) to be the national body responsible for the management of wild life in Kenya. At the local level, management of wildlife is carried out by county councils, which are responsible for game reserves. Although the Wildlife (Conservation and Management) Act is not, strictly speaking, a water resources management statute, KWS has the mandate to deal with wetlands, particularly wetlands under the Ramsar Convention. Presently, these are only Lakes Nakuru, Naivasha, Baringo and Bogoria. There is a plan to include also the Tana Delta as a Ramsar site. However, there are also a few instances, like those of Mt. Kenya National Park and Mt. Elgon where the Kenya Wildlife Service has been given responsibility to manage park areas, which cover gazetted forests. As these are of great significance as catchment areas, the Wildlife Act can therefore have implications for the management of water resources. The Forest Act6 The Forest Act (2005) provides for the establishment of forest conservancy areas and committees to regulate the management of forests in their respective areas. This provision is a major departure from the previous administrative arrangements for the management of forests in Kenya, under which forests were managed on the basis of administrative provinces and districts. In this respect the new Forests Act is more closely aligned to the Water Act 2002, in so far as it provides for management of the natural resources on an ecological basis.5 Cap 376 Laws of Kenya, 6 Chapter 385 Laws of Kenya Forest management is an important aspect of integrated water resources management due to the fact that many gazetted forest areas coincide with water catchments. The Middle reaches of the Mt. Elgon, which form part of the study area are forested and have benefited from protection under forest laws.

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Section 23 of the Act provides for the creation of forests. It states that the Minister may, from time to time, by notice in the Gazette declare: (i) (ii) Any un alienated Government land to be a forest area and any land purchased or otherwise acquired by the Government The Forest Service, created under the Act may recommend variation of the boundaries of a forest or declaration that a forest ceases to be forest if it is satisfied, inter alia, that the variation or cessation does not adversely affect the value of the forest as a water catchment area.

Under section 24 the Minister may declare any land under the jurisdiction of a local authority to be a local authority forest where: (i) (ii) (iii) (iv) The land is an important catchment area, a source of water springs, or is a fragile environment; The land is rich in biodiversity or contains rare, threatened or endangered species; The forest is of cultural or scientific significance; The forest supports an important industry or is a major source of livelihood for the local community.

The Act provides for the preparation of forest management plans in accordance with which forests shall be managed. The plans shall be prepared by the Forest Service and the local authority, each with respect to the forest over which it has jurisdiction. Section 52 prohibits various activities in a forest area unless permitted by the Forest Service in accordance with a management agreement entered into with the Forest Service. These include: (i) (ii) (iii) Felling, cutting, burning, injuring or removing forest produce; Setting fire to any grass or undergrowth; De-pasturing cattle; Clearing, cultivating or breaking up any land for cultivation, capturing or killing any animal. 3.1.4 Institutional Framework for management of water resources In Kenya before the enactment of Water Act 2002, MWI, Ministry of Local Government, NGOs, CBOs and the private sector actors undertook water resources development and management. However, the management of water affairs were unsuccessful due to institutional weaknesses including over-centralized decision-making processes, an inappropriate and run-down monitoring network, inadequate water resources database and documentation, discontinuous assessment programs, uncoordinated source development, inoperative water rights, absence of special courts to arbitrate water use conflicts, and a generally weak institutional setup; all these affected the sectors performance. Inadequate funds and shortage of essential facilities was responsible for dilapidated infrastructure. From 1992 the water sector embarked on reforms designed to improve water and sewerage services and water resources management. Based on the new Water Act 2002 new institutions for water resources management and water services were established. The figure shows the new institutional set-up under Water Act 2002 modified to bring on board the new Ministrys mandate. Water resources management has been devolved to the lower levels to ensure transparency, effectiveness and efficiency. The institutional changes are aimed at building strong and wellfocused institutions capable of managing water resources and delivery of water services effectively.

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Water Appeal Board

Water Services Trust Fund WSTF

Policy Formulation

National Level

MWI

NIDDA WRMA WASREB

Nat. Water Conservation and Pipeline Corporation NWCPC

NIDDS (NIB) IDRETS WRMA Regional Offices Catchment Area Advisory Committees CAACs Water Resource User Associations WRUAs

Regional Level

Irrigation Water User Associations IWUAs

Local Level

Water Service providers WSPs

Irrigation & Drainage

Water Resources Management

Water & San. Services

Consumers, Users

Figure 2.New institutional setup of the Ministry of Water and Irrigation after the Water Sector Reforms in Kenya

Poor governance has far-reaching implications in terms of human rights violations, corruption, absence of the rule of law and lack of transparency and accountability. Corruption undermines not only economic development but also the democratic quality of political systems; it increases social injustice. Within the water sector, corruption is prevalent. This problem poses a significant threat to sustainable human development and equality. Water is a natural resource that has a key role in development and sustainable livelihoods. As such, the equitable distribution of basic water resources and services is crucial. The cost of corruption in the water sector not only severely harms a countrys prospects for providing water and sanitation to all, but it also disproportionately affects the poor. This leads to inequitable management and use of basic water services. Yet corruption is one of the least addressed challenges in the water sector. And poor people are as yet not able to hold service providers and governments to account.

The MWI remains in charge of development of legislation, policy formulation, sector coordination and guidance, and monitoring and evaluation. The MWI has overall supervisory powers over the implementation of the IWRM and WE Plan.

The WRMA, a corporate body that functions under the direction of a governing board, has responsibility for water resources management. It will develop principles, guidelines, and procedures for the allocation of water resources; assess and reassess the potential of water resources; receive and determine applications for permits for water use; monitor and enforce conditions attached to the permits for water use; regulate and protect the quality of water

Consumption Use

Service Provision

I&D Stakeholder Committees

Water Service Boards WSBs

Regulation

Kenya Water Institute KEWI

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resources from adverse impacts; manage and protect catchment areas; determine charges and fees to be imposed for the use of water from any water source; gather and maintain information on water resources from time to time in order to publish forecasts, projections, and information on water resources; and work with other bodies for the better regulation and management of water resources. The Authority shall be responsible for coordination and implementation of the IWRM Plan.

A lot of progress has been made in rolling out the CMS. These CMS are pivotal to the implementation of the IWRM plan in the context of the Kenyas hydrological boundaries set up under the current water resources management regime. The WRMA established CAACs offices in the regions, whose membership consists of government officials, water users and communities. The CAACs role includes advising WRMA officers at regional level on water resource conservation, use, and apportionment; the granting, adjustment, cancellation, or variation of any permit; and any other matter pertinent to the proper management of water resources. The delineated catchment areas comprise Lake Victoria South, Lake Victoria North, Rift Valley, Athi, Tana, and Ewaso Ngiro. It is anticipated that the present catchment areas will be subdivided as water demand increases as well as the need for moving decision making further downstream. Water Resources Management Authority: The WRMA, a corporate body that functions under the direction of a governing board, has responsibility for water resources management. It will develop principles, guidelines, and procedures for the allocation of water resources; assess and reassess the potential of water resources; receive and determine applications for permits for water use; monitor and enforce conditions attached to the permits for water use; regulate and protect the quality of water resources from adverse impacts; manage and protect catchment areas; determine charges and fees to be imposed for the use of water from any water source; gather and maintain information on water resources from time to time in order to publish forecasts, projections, and information on water resources; and work with other bodies for the better regulation and management of water resources. The Authority shall be responsible for coordination and implementation of the IWRM Plan.

A lot of progress has been made in rolling out the CMS. These CMS are pivotal to the implementation of the IWRM plan in the context of the Kenyas hydrological boundaries set up under the current water resources management regime. The WRMA established CAACs offices in the regions, whose membership consists of government officials, water users and communities. The CAACs role includes advising WRMA officers at regional level on water resource conservation, use, and apportionment; the granting, adjustment, cancellation, or variation of any permit; and any other matter pertinent to the proper management of water resources. The delineated catchment areas comprise Lake Victoria South, Lake Victoria North, Rift Valley, Athi, Tana, and Ewaso Ngiro. It is anticipated that the present catchment areas will be subdivided as water demand increases as well as the need for moving decision making further downstream. Water Services Regulatory Board: The Water Supply and Sewerage Development is the responsibility of the Water Services Regulatory Board (WSRB), which is also a corporate body. The boards functions include issuance of licenses for the provision of water; determination of standards for the provision of water services to consumers; establishment of procedures for handling complaints made by consumers against licensees; monitoring compliance with established standards for the design, construction, operation, and maintenance of facilities for water services; monitoring and regulation of licensees and enforcing license conditions; advising licensees on procedures for dealing with complaints from consumers and monitoring the operation of these procedures; developing guidelines for fixing of tariffs for the provision of water services; and developing model performance agreements for use between licensees and water service providers.

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Water Service Boards: Kenya has been divided into economically viable Water Service Boards (WSBs) to ensure that water is provided for every part of the country. Each WSB is responsible for the efficient and economical provision of water services within its area of jurisdiction and has the following functions: Capacity building of communities to start water provision as a business Carrying out competitive selection of service providers Drawing up of service provision agreements Clustering of the spaghetti lines to known off-take and metered points to eliminate water losses through illegal connections Elimination of cartels by setting tariffs and regulation and Ensuring equitable distribution of water through zoning of community service providers and enforcing service standards as stipulated in the service provision agreements.

Membership of the WSBs includes representatives of the local authorities as directors. Water Service Providers: The actual water service delivery shall be done by a water service provider (WSP). A WSB, therefore, enters into a service agreement with a WSP in writing for the purpose of providing water and/or sanitation services in specified areas. The WSP is required to submit a business plan and enter into a performance contract. The regional Water Service Boards relate to the local authorities in water services provision through the appointment of directors to these water service providers or companies. Water Appeal Board: For the purposes of administering the Water Act of 2002, those parties that may be aggrieved by a decision or order of the authority, minister, or regulatory board over a permit or a license have a right to appeal to the Water Appeal Board (WAB), whose judgment shall be final. The work of the WAB is expected to increase as demand increases, competing and conflicting needs exacerbate problems, and water scarcity begins to hit harder. Government Ministries and Para governmental Organizations: The Ministries of Water and Irrigation, Local Authorities, Regional Development Authorities, Agriculture, and Livestock and Fisheries Development, with financial resources from the Exchequer and other lending agencies, in the past have independently developed and managed water supplies for their sectors with no policy and very limited coordination. This may best be demonstrated by water supplies and sanitation. Out of the 2,500 water schemes in the country, 330 government gazetted water supply schemes served 80 percent of the population served. Before the reforms, 1,800 individual programs were operated by the MWI, 200 by local authorities, and the other 200 by the NWCPC. The remaining 300 programs were operated by NGOs and individuals and private companies. Community-Based and Other Nongovernmental Organizations: Waters value is such an important commodity had attracted a large number of operators including self-help groups (300 schemes), and community-based organizations (400 schemes). The entry of self-help groups and Community-Based Organizations into water service delivery has improved access to many communities that could not be served from publicly-run water supply schemes. However, the operation of these organizations were frustrated by poor coordination, lack of financial resources and lack of capacity. These frustrations notwithstanding, civil society entities saw an opportunity to address some of their ongoing grievances in the management of water supply and sanitation through the intended water sector reforms.

Through interaction with and between the WSTF, WSBs, and WSPs, communities in peri-urban areas and informal settlements saw an opportunity for being empowered to manage provision of water services. A scaling-up program planned for other informal settlements and peri-urban areas in Nairobi and other urban areas through the respective WSBs is under way. A study that will result in a clear framework for making the Water Act of 2002 operational in rural and peri-urban water supplies and sanitation is being funded by SIDA and DANIDA.

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Nongovernmental water service providers have formed an association to galvanize their common interests such as tariff negotiation and compliance with regulations. Water Resources Users Associations: Water sector development had been highly centralized. It was inevitable that communities had to be involved in all stages of water supplies development. Gender issues were beginning to become a major policy interest as well. The government initiated the process of handing over completed supplies to communities. The WRUAs provide a forum for conflict resolution and cooperative management of water resources in designated catchment areas. The WRUAs are responsible for conserving the watershed and advising the CAACs on the available water that may be allocated or re-allocated to other water users. Multi-sectoral Coordination and Implementation of Water sector: The inter-ministerial Water Sector Reform Steering Committee (WSRSC) guides and coordinates the water sector reform process, and the Water Sector Reform Secretariat (WSRS) implements the WSRSCs decisions. Key responsibilities and interaction are between the WSRSC, MoWI, Ministry of Finance (MoF), Ministry of Local Government (MoLG), Ministry of Health (MOH), Ministry of Education (MOE), Ministry of Agriculture (MOA,), stakeholders (NGO Council, Kenya Association of Manufacturers [KAM]), WRUAs, Water Service Providers Association (WSPA), and Association of Local Government Authorities of Kenya (ALGAK). 3.2 Tanzania National Policy and Legal Framework 3.2.1 Review of Water Related Policies

The National Water Policy 2002 The National Water Policy (2002) has the following overall objectives: (i) (ii) (iii) (iv) To address cross-sectoral interests in water use, watershed management and participatory integrated approaches in water resources planning, development and management To a lay a foundation for sustainable development and management of water resources through changing roles of the Government from service provider to that of coordination, policy and guidelines formulation and regulation To ensure full cost recovery in urban areas and cost sharing in rural areas with considerations for provision of water supply services to vulnerable groups through various instruments including lifeline tariffs and To ensure full participation of beneficiaries in planning, construction, operation, maintenance and management of community based water supply schemes in rural areas.

The National Water Policy 2002 has brought about new thinking in the water sector. Firstly it recognizes that the water resources is a finite resource which is under pressure and growing scarce as a result of increasing multisectoral demands of the rapidly growing populations, and a vulnerable resource due to increasing degradation (pollution, watershed degradation, over abstraction of surface and groundwater resources, wetlands degradation, water weed infestation) and natural disasters - floods, and droughts. Yet it is a source of natural capital, and acts as a sink (receptors for wastewater discharges from municipal, industrial and agricultural sources) and that freshwater also sustains the integrity of ecosystems. The National Water Policy 2002 (NAWAPO 2002) sets out the future direction for the Water Sector in achieving sustainable development and management of the Nations water resources for economy-wide benefits and an increase in the availability of water supply and sanitation services. The former approach was sector oriented not fully recognising the multi-sectoral linkages, and was based on regional development as the basis for planning, did not focus on institutional and capacity and management considerations, was oriented towards the development of the

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water resources and not on the protection or management of the water resources, was based on regulation as a primary instrument for implementing the water policy. Many of the conflicts over water use which exist today are a result of this developmental approach. The current policy framework for the sector is set out in the National Water Policy 2002 (NAWAPO 2002), with the vision of a country where there is equitable and sustainable use and management of water resources for economic development, and for maintenance of the environment. It is oriented towards reaching the MDGs for water and sanitation in Tanzania and incorporates the overall development goals set out by the Vision 2025 and the National Strategy for Growth and Reduction of Poverty (MKUKUTA). NAWAPO 2002 sets out the future direction for the Water Sector in achieving sustainable development and management of the Nations water resources for economywide benefits and an increase in the availability of water supply and sanitation services. The water sector reforms have resulted into National Water Policy 2002, National Water Sector Development Strategy 2006-2015, Water Resources Management Act 11, 2009 and Water Supply and Sanitation Act 12, 2009. These reforms have resulted in new institutional frameworks and organization structures. The water new framework for water resources management has five main levels at (i) national (ii) basin, (iii) catchment, (iv)district and (v) community and water associations. The new organizational structure of the Water Resources Division (WRD) to implement these reforms has the following sections: (a) Water Resources Monitoring and Assessment, (b) Water Resources Planning, Research and Development, (c) Transboundary Water Resources Management, and (d) Water Resources Protection, Enforcement and Environment, which are in line with its mandates. The organization structures for most of the Basin water Offices mimic that of the WRD. These reforms are now being implemented through the Water Sector Development Programme 2006-2025. It is also necessary to recognize other supporting or related legislation, they include: Environment Management Act of 2004, the Fisheries Act, 2003, the National Parks Act, the Forest Act, 2002, the Mining Act, the Land Act, Land Use Planning Act and Local Government Laws, and many others. They contain important provisions related to judicious use of natural resources and protection of environment and ecosystem. NAWAPO has brought about new thinking in the water sector. Firstly it recognizes that the water resources is a finite resource which is under pressure and growing scarce as a result of increasing multi-sectoral demands of the rapidly growing populations, and a vulnerable resource due to increasing degradation (pollution, watershed degradation, over abstraction of surface and groundwater resources, wetlands degradation, water weed infestation) and natural disasters - floods, and droughts. Yet it is a source of natural capital, and acts as a sink (receptors for wastewater discharges from municipal, industrial and agricultural sources) and that freshwater also sustains the integrity of ecosystems. Former approach to water resources management and development in Tanzania was sector oriented, not fully recognising the multi-sectoral linkages, based on regional development as the basis for planning (uncoordinated regional and sectoral planning and development), did not focus on institutional capacity and management considerations, was oriented towards the development and not on the protection or management of the WR, was based on regulation as the primary instrument for implementing the water policy, and resulted into many water use conflicts. The new approach advocates integrated approach to water resources management, which is participatory, multisectoral, multi-disciplinary, and based on River Basins, which recognizes that water is a scarce resources and treats it as such, integrates the linkage between land use and water use, water quality and quantity, and recognizes the important role ecosystems play in the sustainable development and management of water resources. The new framework also focuses on building and strengthening water resources management, and complements the service delivery aspects of water resources development and aims at reducing dependency on external support, and is based on learning by doing. In essence the new approach advocates:

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Comprehensiveness: a holistic basin approach for integrating, multi-sector and multi-objective planning, management that minimises the effects of externalities, and ensures sustainability and protection of the resource Sustainability: water resources will be utilised within sustainable limits (safe yields of surface and groundwater and assimilative capacities for discharge of pollutants) Subsidiary: river basins would be the units of operational WRM (Basin Water Boards comprising basin stakeholders with decisions on water). Separation: WRM & regulatory functions separated from service delivery Economic value: decision making in the public sector, private sector & in civil society on the use of water should reflect the scarcity value of water, water pricing, cost sharing, and other incentives for promoting the rational use of water Participatory: involvement of stakeholders in all key decisions-making Regulatory: promotes the use of legal, technical, economic, participatory, and administrative instruments as the basis for managing WR resources and for promoting sustainable use of the limited WR

One of the biggest challenge of the water sector has been a clear understanding of the available water resources for fair, transparent and equitable water allocation. NAWAPO requires that water resources assessment will be based on sound scientific and technical information and understanding. It will define the status of surface and groundwater resources in terms of quantity and quality and use on the basis of water basins and aquifer boundaries; and the information will be made readily accessible to users, stakeholders and decision makers. The National Water Policy (NAWAPO) which was promulgated in 2002 sets out the future direction for the Water Sector in achieving sustainable development and management of the Nations water resources for economy-wide benefits and an increase in the availability of water supply and sanitation services. It provides key principles for water resources management and aims at developing a comprehensive framework for promoting the optimal, sustainable and equitable development and use of water resources for the benefit of all Tanzanians. The policy is in conformity with the National Environmental Policy of 1997 which is the umbrella policy governing environmental management in Tanzania. With regard to management of transboundary water resources NAWAPO recognizes Tanzania as a riparian state and it emphasized that In order to make effective utilization of trans-boundary water resources, efforts have to be directed at assessing the needs of Tanzania, development of national plans and promotion of regional cooperation and integration with riparian states. Although Tanzania is riparian to many international waters their management is complex and based on joint arrangements with co-riparian nations. Large scale abstractions or inter basin water transfers from these waters would require a consent from co-riparians sharing the waters. The national capacity for developing a clear strategy for managing the numerous international waters is limited. In the context of Tanzania each international water body exhibits unique characteristics, both demographic and geographic. The range of water management issues can be broadly categorized as: (a) environmental management (including water pollution, biodiversity conservation, wetlands and catchment degradation, fisheries management, and water hyacinth control); (b) river basin development (for hydropower production, municipal and irrigation water supply); (c) international border stabilization; (d) river regulation and control; and (e) inter-basin water transfer for consumptive uses. National Environment Management Policy 1997 This Policy identified six major environmental problems facing the country. These include: land degradation; lack of accessible, good quality water for both urban and rural inhabitants; environmental pollution; loss of wildlife habitats and biodiversity; deterioration of aquatic systems; and deforestation. The overall objectives of the National Environmental Policy are: (i) To ensure sustainability, security and equitable use of resources for meeting the basic need of the present and future generations without degrading the environment or risking health or safety;

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(ii) (iii) (iv) (v) (vi)

To prevent and control degradation of land, water, vegetation, and air which constitute our life support systems; To conserve and enhance our natural and man-made heritage, including the biological diversity of unique ecosystems of Tanzania; To improve the condition and productivity of degraded areas including urban and rural settlements in order that all Tanzanians may live in safe, healthful, productive and aesthetically pleasing surroundings; To raise awareness and understanding of the essential linkages between environment and development, and promote individual and community participation in environmental action; and To promote international co-operation on the environmental agenda, and to expand our participation and contribution to relevant bilateral, sub-regional, regional, and global organization and programs, including implementation of treaties.

In addition the Policy outlines environmental areas that need to be addressed in sectoral policies. For instance in the water sector, the Policy identifies the following objectives that must be met: (i) (ii) (iii) (iv) Planning and implementation of water resources and other development programs in an integrated manner and in ways that protect water catchment areas and their vegetation cover; Improved management and conservation of wetlands; Promotion of technology for efficient and safe water use, particularly for water and waste water treatment and recycling; Institution of appropriate user-charges that reflect the full value of water resources.

The National Agriculture Policy (1997) The Policy recognizes the need of enhancing agricultural technologies and practices to improve agricultural production in the country. It emphasizes the need of irrigation development through the use of environmentally friendly technologies. In addition it highlights development of smallholder irrigation systems based on water harvesting technology and emphasizes private sector participation in agricultural production, agro-processing and marketing of agricultural produce with the government focusing on Policy formulation and sector coordination The National Forest Policy The overall goal of the national forest policy is to enhance the contribution of the forest to sustainable development of Tanzania and the conservation and management of her natural resources for the benefit of present and future generations. The objectives of the national forest policy are as follows: (i) Ensured sustainable supply of forest products and services by maintaining sufficient forest area under effective management; (ii) Increased employment and foreign exchange earnings through sustainable forest based industrial development and trade; (iii) Ensured ecosystem stability through conservation of forest biodiversity, water catchments and soil fertility; and (iv) Enhanced national capacity to manage and develop the forest sector in collaboration with other stakeholders The National Fisheries Policy (1998) The overall goal of this Policy is to promote conservation, development and sustainable management of the fisheries resources for the benefit of the present and future generation. The main policy strategies are:

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The main policy strategies are: (i) Instituting effective mechanism for monitoring fishing activities especially in deep water fishing for export to minimize unrecorded exports and to ensure that appropriate government revenue is collected; (ii) Establishing conservation centres in all lake and sea waters and ensure effectiveness in maintaining quality and managing the natural ecosystem; (iii) Strengthening research and extension services for fishermen; (iv) Improving infrastructure for fish handling, processing, packaging preservation storage and marketing. National Irrigation Policy 2010 The main objective of the Policy is to ensure sustainable availability of irrigation water and its efficient use for enhanced crop production, productivity and profitability that will contribute to food security and poverty reduction. Eleven specific objectives are narrated. Among the specific objectives outlined in the Policy: (i) to accelerate investment in the irrigation sector by both public and private sector players (ii) to ensure that Irrigation Development Funds are with a legal status (iii) to promote efficient water use in irrigation system (iv) to ensure reliable water for irrigation so as to facilitate optimization, intensification and diversification of irrigated crop production including pasture and aquaculture and Implementation of the Policy is expected to bring up positive results such as: (i) (ii) (iii) (iv) (v) accelerated investment and effective management in irrigation schemes; increased private sector involvement in service provision and investment in irrigation interventions reliable and sustainable irrigation infrastructure sustainable utilization of land and water resources for irrigation reliable and sustainable crop production under irrigation which does not entirely depend on rainfall will have more contribution to food security, employment, poverty reduction and the overall economic growth of the nation

The Policy has the following issues that are addressed under it: investment for irrigation development in Tanzania; management of irrigation schemes; irrigation research and development; promotion of appropriate irrigation technologies; production and productivity in irrigation schemes; training and human resource development; institutional capacity; financing mechanism as well as cross-cutting issues. The National Gender and Development Policy (2000) The Overall objective of the Policy is to promote gender equity and equal participation of men and women in economic, cultural and political matters. The Policy also fosters to have fair opportunities for women and men and access to education, child care, employment and decision making. The Policy recognize the need of stakeholders to advance gender issues socially, culturally, economically and politically. Generally the Policy intends to enhance gender mainstreaming, women access and ownership to property, participation in decision making. The Policy calls also for establishment of gender focal points at ministerial, regional and district levels to ensure gender issues are properly addressed. The Policy also emphasize on gender equality. The National Human Settlement and Development Policy 2000 The overall goals of this Policy are to promote development of human settlements that are sustainable as well as to facilitate the provisions of adequate and affordable shelter to all income groups in Tanzania. The Policy has got 14

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specific objectives. Among the specific objectives the following have got great bearing on the sustainable management of the environment: (i) (ii) (iii) to protect the environment of human settlements and ecosystems from pollution, degradation and destruction in order to attain sustainable development. to encourage development of housing areas that are functional, healthy, aesthetically pleasant and environmentally friendly to streamline the legal and institutional machinery for human settlement development

The Policy has three main policy issues been addressed. These are broad human settlement issues, shelter issues and urban development issues. Among the issues discussed under the broad human settlement issues are those related to environmental planning and management where the Policy clearly states that human activities take place in human settlements affects the environment positively or negatively, environmental protection shall be a strategic issue as far as human settlement development is concerned and thus environmental planning and management is needed to ensure that settlements are liveable and sustainable. The Policy also takes into consideration the gender perspective in human settlement planning and development with the intention to foster equality and harmony in a society. It recognizes that participation of women in planning and decision making as a prerequisite to the formulation and execution of workable broad based and sound human settlements policies and projects bearing in mind the fact women play a big role in the development of the country. Generally the Policy addresses most of the pertinent issues pertaining to human settlements development in the country. It suggests measures to facilitate the alleviation of rural and urban problems; discourages gender discrimination in land development and or ownership; offers special attention to disadvantaged groups; and provides measures towards attaining and improved or conducive environment and sustainable development The Rural Development Policy 2003 The Policy was formulated with the major aim of providing a framework and a jump-off point for harmonization, coordination and integration of sector policies and to enable smooth formulation and implementation of the rural development strategy. Specifically the Policy strives to accomplish the following objectives: (i) (ii) (iii) (iv) promote widely shared and broad based economic growth increase opportunities and access to social and economic services enhance good governance and build private and public sector partnership to enable greater private sector involvement in the provision of support services, marketing of input and output and investment in the agricultural sector.

Implementation of the set objectives using the identified strategies are intended to foster socio-economic development and is expected to be attained through transformation from a predominantly rural-based subsistence agricultural economy to a semi-industrialized one with the overall objective of eradicating hunger, diseases and ignorance in order to meet the peoples basic needs such as fundamental social services, to create resources for the improvement of human wellbeing and of the public services, create employment opportunities to meet the growing unemployment and resolve social and economic tensions regarding the distribution of income and wealth. The National Energy Policy The Government formulated this Policy with the vision to effectively contribute to the growth of the national economy and thereby improve the standard of living for the entire nation in a sustainable and environmentally sound manner. Based on the above mention Policy vision, the mission is therefore to create conditions for the provision of safe, reliable, efficient, cost-effective and environmentally appropriate energy services to all sectors on a sustainable basis. The national energy policy objectives are to ensure availability of reliable and affordable energy supplies and their

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use in a rational and sustainable manner in order to support national development goals. The national energy policy therefore aims to establish an efficient energy production, procurement, transportation, distribution and end-use systems in an environmentally sound and sustainable manner. The National Strategy for Growth and Reduction of Poverty (NSGRP) identifies the close relationship between good governance of water resources management and the desired outcomes. This relationship shows that: inequitable and unjust water allocation practices and ill-defined water permits that restrict access to and control over water resources pose a major obstacle to poverty reduction; planning processes that alienate affected communities from decision making and from sharing benefits of water development projects foster social stratification and limit the prospects of poverty reduction through economic growth; and helping people to plan and manage their own water resources by ensuring participation in decisionmaking, creating user organizations, and transferring operations and maintenance responsibilities to the basin level will increase empowerment and promote good governance. 3.2.2 Review of water related laws and regulations The new water policy has raised many important elements that will influence the new legislation and its regulations. Important elements of the new regulations are in relation to the Boards, water user associations and catchment Organizations, representation of water users, fees and charges, the various standards (pollution, effluents, receiving water quality, wastewater disposals), administration of water including water permits and resource use, issues related to appeals, and in relation to the application of the various instruments. Until recently water resources management in Tanzania was governed by Water Utilisation (Control and Regulation) Act No. 42 of 1974, as amended by: Water Utilisation (Control and Regulation) (Amendments) Act No. 10 of 1981. Water Laws (Miscellaneous Amendments) Act No.8 of 1997. Written Laws (Miscellaneous Amendments) Act No.17 of 1989. Water Laws (Miscellaneous Amendments) Act of 1999. Regulations issued in 1975, 1997 and 2002. Section 8 of the Water Utilization (Control and Regulation) Act No. 42 of 1974 vests all water in the United Republic of Tanzania to the Government. In 1989, through the Water Utilization (Control and Regulation) Act No. 42 of 1974, as amended by Act No. 10 of 1981) the Minister for Water gazetted nine (9) water basins for the purposes of water resources administration and management. Six of these basins are international drainage basins. The Constitution of United Republic of Tanzania (1998) also recognizes the duty to every person to protect natural resources and it stipulates; Every person has the duty to protect the natural resources of united republic of Tanzania, the property of Tanzania; the property of the state authority, all the property collectively owned by the people and also respects another persons property1 A new Water Resources Management legislation (Act No 11 of 2009) which has recently been passed replaced the Water Utilization (Control and Regulation) Act No. 42 of 1974. The new Act operationalises the NAWAPO 2002 and the NWSDS (2006-2015), and incorporates the principles of international water law. It also makes specific
1

Article 27 of the Constitution of URT

25

arrangements for the preparation of legal provisions for the implementation of regional and international agreements concerning the management and development of transboundary waters. There are supporting legislation including Environment Management Act of 2004, the Fisheries Act, 2003, the National Parks Act, the Forest Act (2002), the Mining Act (1998), the Land Act (1999), Land Use Planning Act, Local Government Laws (1999), etc. They contain important provisions related to judicious use of natural resources and protection of the environment and ecosystems. The Legislation sets out the ownership and use-structure for water resources and the governance structure; it is empowered to make regulation for management of water resources which include National Water Boards, Basin Water Boards, Catchment and Sub-Catchment Water Committees and Water User Associations, The Water Resources Management (Water Abstraction, use and discharge) Regulation 2010. It regulatory framework for water resources management plan, protection of water reserves, restrictions during emergency such as droughts and natural disasters, prevention of pollution, grant of user permits, dam safety and flood management, trans boundary water strategies and policies, and offences and penal sanctions The Act declare that all water in the country is vested to the United Republic of Tanzania, sets conditions on the use of water and authorises the Principal Water Officer with authority, to be responsible for setting policy and allocation of water rights at the national level. For designated water drainage basins with established Basin Water Offices, the responsibilities are under the Basin Water Officer The Water Supply and Sanitation Act No. 12 of 2009, focuses on the supply of drinking water and sanitation services, it provides for the transparent regulation of water supply and sanitation services and the creation of authorities to manage water supply and sanitation sustainably. It also provides for the creation of Community Owned Water Supply Organizations (COWSOs) to manage potable water resources at the local level. The principles and objectives of the Water Supply and Sanitation Act 2009 is to promote and ensure the right of citizen of Tanzania to have access to efficient, effective and sustainable water supply and sanitation services for all purpose in accordance with water policy 2002 while following the following principles; creation of enabling environment and appropriate incentives for the delivery of reliable, sustainable and affordable water supply, create authorities which are financially and administratively autonomous and sustainable, stakeholder participation in management of community water supply, promotion of public, private sector partnership in provision of services, establishment of enforcement and standard of service, protection and conservation of water resources, development and promotion of public health and sanitation. The Land Act 1999 classifies land as reserved land, village land; and general land. Reserved land includes statutorily protected or designated land such as national parks, land for public utilities, wildlife reserves and land classified as hazardous, which designates land whose development would pose a hazard to the environment (e.g., river banks, mangrove swamps). Village land includes registered village land, land demarcated and agreed to as village land by relevant village councils, and land (other than reserved land) that villages have been occupying and using as village land for 12 or more years (including pastoral uses) under customary law, all other land is classified as general land, and the general land includes woodlands, rangelands and urban and peri-urban areas that are not reserved for public use. The 2009 Water Resources Act provides that the countrys water is a public resource vested in the state, with the President authorized to act as trustee of the resource on behalf of the population. The Act requires anyone who diverts, dams, stores, abstracts or uses water other than for domestic purposes to obtain a water permit from the Basin Water Board. Individuals and groups with legal access to land are permitted to access surface water for domestic needs without a permit. Landholders are also permitted to access to groundwater through hand-dug wells and may construct facilities to harvest rainwater for domestic use without a permit

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Upon recommendation from the Basin Water Board, the Ministry of Water and Irrigation can declare an area to be a Groundwater Controlled Area. Anyone sinking, deepening or enlarging a bore well in a Groundwater Controlled Area must obtain a groundwater permit from the Basin Water Board. The Ministry of Water and Irrigation and the Basin Water Boards also have authority to prevent actions causing pollution or other harm to water resources, including through establishing Protection Zones around water sources and requiring permits for the discharge of effluents and other substances into water bodies The Basin Water Board is required to recognize customary water rights as equivalent in status to granted water rights. Customary rights can be recorded and can be subject to annual fees or payment of a premium. All water rights, whether customary or granted, are subject to the management authority of the Basin Water Boards and Ministry of Water and Irrigation, which can restrict use during periods of drought and natural disasters. The ministry can designate water resources necessary for public purposes such as fire fighting, protection of ecosystems, and providing water to urban settlements. The statement of public purpose authorizes the minister to restrict other water uses, subject to payment of compensation to holders of permits Tanzanias Forest Act (2002): classifies the countrys forests; establishes forest governance bodies; outlines requirements for the creation and conversion of forest reserves and granting of forest concessions and licenses; and like the Kenyan counterpart it sets the foundation for participatory forest management (PFM) by local communities. Communities living in or adjacent to forests work with local forest department officials to create agreements regarding the sustainable management of forestland. PFM can be applied to forests under full protection, production forests or mixed purpose forests. Village governance bodies are responsible for establishing a plan to manage village forest reserves in a sustainable fashion. The Forest Act does not define sustainability nor provide for external monitoring and review of forest management plans or joint forest management agreements The Forest Act provides that all biological resources of the forest and their intangible products, including all genetic material, are the property of the government and shall be preserved and used for the benefit of the people of Tanzania. The Forest Act grants the government the authority to enforce the provisions of the Act and assess fines and penalties for noncompliance. Tanzanias forests include forest reserves and private forests. Forest reserves include national parks and game reserves and central government forest reserves local government authority forest reserves, and village land forest reserves. The highest categories of protected area, national parks, permit no extractive use and require parliamentary action to de-gazette. Nature reserves do not allow human consumptive activities, but the government and communities may enter into joint agreements for special purposes other categories of reserves include protective and productive forest reserves and can be the subject of participatory forest management arrangements between the government and local communities. Although Tanzania is rich in wetland resources, there is no systematic national programme for development and management of wetland resources. Existing legislation do not provide for the protection and conservation of wetland as unique ecosystems and sustainable sources of water however wetland are fundamental ecological services and are regulators of water regimes and sources of biodiversity at all levels that is species, genetic and ecosystem. Wetlands constitute a resource of great economic, scientific, cultural, and recreational value for the community; they play a vital role in climate change adaptation and mitigation. Progressive encroachment on, and loss of, wetlands in most cases cause serious and sometimes irreparable environmental damage to the provision of ecosystem services. The Wetland management in Tanzania like its counterpart the Kenya and Uganda is in the most sectors dealing with water resources, because wetland management is cross cutting and many of them are not protected. It is always a challenge to coordinate all the key players involved in the management of water. There are no adequate mechanisms to co ordinate participation by the different that are often mandated to deal management of water resources and natural resources.

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The wildlife legislation seek to ensure protection and utilization of wildlife resources whose objective are establishing protected area, conservation, devolution of management roles to local community. Unlike Kenya whose laws that relate and govern the wildlife conservation are the forest Act, and Agriculture Act. Land Act, 1999 as amended in 2004 recognizes the role of land in economic and urban development. The law provides for technical procedures for preparing land use plans, detailed schemes and urban development conditions in conformity with land use plan and schemes. The LGA has the power to impose conditions on the development of any area according to the land-use planning approved by the Minister the Town and Country Planning Ordinance Cap 378 of 1956 as amended in 1993 is the main urban land-use planning guide and it provides for specific regulations to address ecologically fragile lands for conservation. It is always a challenge to coordinate all the key players involved in the management of water. There are no adequate mechanisms to coordinate participation by the different that are often mandated to deal management of water resources and natural resources, there is a need of developing and harmonize national water laws to support the existing efforts towards water governance. 3.2.3 Institutional Framework for management of water resources

Institutions involved in the Water Sector include Ministry of Water and Irrigations (MoWI) whose functions comprise of policy and strategy development, coordination of the planning process and financial mobilization for projects of national importance. With regard to water resources management, MoWI ensures policy sectoral planning and coordination, deals with transboundary water resources issues of national interest, develops water resources of national interest, maintains WRM sub-sector information, monitors NWB and BWBs, and supervises Water Resources Institute and Drilling and Dam Construction Agency. Other ministries and institutions include Ministry of Natural Resources and Tourism (MNRT); Ministry of Agriculture, Food Security and Cooperatives (MAFC); Ministry of Energy and Minerals (MEM); and Tanzania National Parks (TANAPA). Other specific institutions and ministries include National Water Boards whose main responsibilities consist of the integrated sustainable management and development of water resources of the river basins in the country including transboundary waters; Water Supply and Sanitation Authorities (WSSAs) that manage and develop water supply and sewerage infrastructure. WSSAs are responsible for preparing business plans to provide water supply and sewerage services including capital investment plans. The functions of the WSSAs comprise also the securing of financing for capital investments; Community Owned Water Supply Organizations (COWSOS); Local Government Authorities (LGAs) including Municipal and District councils are responsible for coordinating the physical planning with WSSAs and coordinating WSSAs budgets within Council Budgets. The overarching legislation for urban development and environmental management is the Local Government (Urban Authorities) Act Number 8 of 1982 as amended. The Local Government (District Authorities) Act Number 7 of 1982 also has relevance to urban matters in respect of Townships and Minor Settlements. Local government authority (LGAs) are also mandated to make appropriate by-laws for specific issues. These two Acts establish the respective institutions and confer specific responsibilities and functions with respect to land-use planning and management, urban development and environmental management. Ministry of Finance (MoF) is responsible for overall planning and budgeting. The Prime Ministers Office - Regional Administration and Local Government (PMO-RALG) is involved in coordinating planning of projects from local government authorities and their budgets. The Division of the Environment (DOE) in the Vice-Presidents Office and the National Environmental Management Council (NEMC) are responsible for environmental management, providing umbrella policy and legislation, and EIA procedures and guidelines, regulations and standards. The Environmental Management Act Number 20 of 2004 is an Act that gives powers to several actors to take charge of specific aspects of the national environment.

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The Ministry of Lands and Human Settlement is also concerned about water resources, particularly the availability of potable water for urban settlements, and inundation. Ministry of Communications &Transportation is concerned about water resources since highway construction frequently disrupts run-off patterns and increases river siltation levels. The Ministry of Trade & Industry focuses on both industrial water requirements and effluent discharges. Non-Governmental Organizations (NGOs) are also playing an increasing role in water-related development, and are recognized as a key partner in facilitating rural development. With the role of Government, through the Ministry responsible for Water, changing to that of co-ordination, policy and guideline formulation, and regulation, new institutions will need to be created. These are the National Water Board, Basin Water Boards, Catchment Water Committees, and Water User Associations or Groups. National Water Board: The National Water Board (NWB) will be an advisory to the Minister responsible for water. The Board will oversee, co-ordinate and facilitate the activities of Basin Water Boards, and will employ the staff necessary to carry out its functions and responsibilities. Basin Water Boards: The Basin Water Boards will be financially and administratively autonomous, and will be financed through water user charges. The Boards will employ the staff necessary to carry out their functions and responsibilities, and will be accountable to the National Water Board. Water users will participate in WRM processes through representation on the Boards and appropriate stakeholder fora. The responsibilities of the BWO include allocation of water and granting water rights, monitoring use, enforcement of condition of the water rights, resolution of water use conflicts; monitoring water quality, granting [wastewater] discharge permits, and enforcement of pollution control regulations. Some of these mandates such as pollution control and source protection (under the Water Utilization and Control Act and the proposed Water Resources Bill) are linked with the responsibilities of other agencies under the Environment Management Act of 2004 (EMA) Catchment and Sub-catchment Committee: The Catchment and Sub-catchment Committees will be autonomous bodies, financed from user charges, and will carry out such functions as are delegated by the Basin Water Board. They may employ staff necessary to carry out these functions, or may be supported by Basin Water Board staff. Water User Associations: Water User Associations will be legally constituted bodies drawing their membership from water users in a particular locality. They may need to employ a few staff in order to carry out the limited functions at the local level and the costs of the Association will be borne from charges levied on its members.

Functions and Responsibilities of New Organisations The new institutional framework for water resources management is set out in Figure 3 and the main functions and responsibilities of each organisation in the framework will be as follows: Functional Responsibilities for Water Resources Management Table 1 Functions and Responsibilities for water Resources Management in Tanzania
Organisation Minister responsible for Water Functions and Responsibilities Presents national policy and strategy to the Government. Ensures policies and strategies are implemented. Appoints Chairperson and members of National Water Board and Basin Water Boards. Determines a mechanism for appeals from all levels of framework. Provides for sectoral co-ordination, monitoring and evaluation. Develops and reviews policies, strategies, including legislation and financing.

Ministry responsible for Water

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National Water Board

Basin Water Boards

Catchment / Sub-catchment Water Committees Water User Associations Regional Secretariat District Councils

Formulates technical standards and WRM guidelines. Ensures dam safety. Monitors Water Quality. Deals with trans-boundary issues of national interest. Develops water resources of national interest. Maintains national WRM sub-sector information Monitors the National Water Board and the Basin Boards. Supervises the Water Resources Institute. (Agency). Supervises the Drilling and Dam Construction Agency. Co-ordinates and harmonises strategic actions of Water Basin Boards. Co-ordinates and endorses basin plans (e.g. sectoral and inter-sectoral, investment priorities and financing patterns, inter-basin water transfer). Co-ordinates technical trans-boundary water resources management issues of national interest. Resolves inter-sectoral / inter-basin conflicts. Co-ordinates information management and assessment of water resources (e.g. hydrological, hydro- geological information, water and discharge permit registers, registers of water user associations etc). Supports basin water boards in the formation of water users associations/catchment organisations. Serves as a communication channel between the water basin boards and the Government Co-ordinates and facilitates the conduct of water audits and provides technical support Data collection, processing and analysis for WRM monitoring and resource assessment. Co-ordinates technical aspects of trans-boundary issues in the basin. Co-ordinate and approve basin WRM planning / budgets. Approve issue and revoke water use and discharge permits. Enforce water use permits and pollution control measures. Co-operate between sectors at the local level. Resolve conflicts between water users. Co-ordinate stakeholders. Integrate district plans into WRM plans Co-ordinate and harmonise catchment/sub-catchment integrated water resources management plans. Resolve water resources conflicts in the catchment/sub-catchment, and other delegated responsibilities from Basin Water Board. Manage allocation of water resources at local level. Manage equitable allocation of water resources during drought. Mediate in local disputes. Representation on Basin Water Boards. Representation on Basin Water Boards. Representation on Catchment Committees. Formulate and enforce bylaws Promote efficient water utilisation Prepare district plans

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Figure 3 Institutional Framework

Minister responsible for Water

Intersectoral WRM planning Coordination of Basin plans Inter- basin planning Conflict management

National Water Board Regional Secretariat

Ministry responsible for Water

Basin WRM planning & management Data collection, processing & analysis Approve rights and discharge permits Enforcing rights and permits Pollution control

Basin Water Boards

Ministry department responsible for Water Resources

WRM policies WRM financing policy Standards & Guidelines Trans-boundary issues Dam Safety Monitoring & evaluation

Catchment planning and management Date collection Conflict resolution

Catchment Water Committees

District Councils

Appeals

Sub-catchment planning /management Data collection Conflict resolution

Sub-catchment Water Committees

Legend Delegated Authority

Management of allocated resources Crisis management during drought Conflict resolution

Water User Association

WRM Responsibility Planning process Representation Coordination

Membership of Water User Association

Water Users

Statutory/Autonomous Bodies

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3.3

Uganda National Policy and Legal Framework

3.3.1 Review of Water Related Policies National Water Policy 1999 The overall policy objective for water resources management in Uganda is to manage and develop the water resources of Uganda in an integrated and sustainable manner, so as to secure and provide water of adequate quantity and quality for all social and economic needs of the present and future generations with the full participation of all stakeholders. The National Water promotes the principle of integrated water resources management as a means for ensuring sustainable management and utilization of Ugandas water resources. The objectives of the water policy are to: (i) (ii) Manage and develop the water resources of Uganda in an integrated and sustainable manner, so as to secure and provide water of adequate quantity and quality for all social and economic needs of the present and future generations with full participation of all stakeholders; Ensure sustainable provision of safe water within easy reach and hygienic sanitation facilities, based on management responsibility and ownership by the users, to 77% of the population in rural areas and 100% of the urban population by the year 2015 with an 80-90% effective use and functionality of facilities; and Promote development of water supply for agricultural production in order to modernize agriculture and mitigate effects of climatic variations on rain fed agriculture

(iii)

In addition to the above stated objectives, the water policy also recognize the need for cooperation on transboundary water resources management issues and promotion of decentralization of water management functions The National Trade Policy 2008 The National Trade Policy was formulated in 2008 and its vision is to transform Uganda into a dynamic and competitive economy in which the trade sector stimulates the productive sectors and to trade the country out of poverty into wealth and prosperity. The ultimate goal of the Policy is to create wealth, employment, enhancing social welfare and transforming Uganda from a poor peasant society into a modern and prosperous society. This Policy charges the Government to eliminate barriers to trade, and providing an enabling environment in which the private will thrive and build capacity to produce quality goods and services competitively, reliably and on a sustainable basis. In addition the Policy identifies the salient relationship and linkage between the trade sector and the productive sectors such as agriculture and industry for exploitation as crucial pillars in the move towards transformation. The Uganda Wildlife Policy 1999 The overall aim of the Policy is to promote the long term conservation of the countrys wildlife and biodiversity in a cost effective manner which maximizes the benefits to the people of Uganda. The Policy intended to address the following national challenges: (i) protection of areas with high levels of biological diversity that are representative of the major habitats of Uganda (ii) sustained management of Ugandas wildlife and protection of threatened and endangered species

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(iii) (iv) (v) (vi)

inclusion of the private sector, communities, NGOs, and others in policy implementation and the management of the countrys natural resources provision of a framework for the management of wildlife outside protected areas, with district authorities and rural communities playing a central role, management of wildlife conservation areas according to a comprehensive national strategy and approved management plans establishment of wildlife-related monitoring and research which directly contributes to wildlife management and conservation.

The Policy addresses nine important areas of concerns. These areas are species conservation and management; conserving wildlife in protected areas; people occupying protected areas; conservation of wildlife outside protected areas; wildlife use rights; problem animal control; tourism development; wildlife education; and wildlife extension services The Energy Policy for Uganda 2002 The Policy goal is to meet the energy needs of Ugandas population for social and economic development in an environmentally sustainable manner. Specifically the energy policy seeks to meet the following broad objectives: (i) (ii) (iii) (iv) (v) to establish the availability, potential and demand of the various energy resources in the country to increase access to modern affordable and reliable energy services as a contribution to poverty reduction to improve energy governance and administration to stimulate economic development and to manage energy-related environmental impacts

Under specific objective five the policy stipulates clearly that environmental considerations shall be given priority whereby energy suppliers and users shall protect the environment by complying to set environmental protection guidelines and standards. The National Oil and Gas Policy for Uganda 2008 The ultimate goal of the Policy is to use the countrys oil and gas resources to contribute to early achievement of poverty eradication and create lasting values to society. The policy has ten specific objectives including to ensure efficiency in licensing areas with the potential for oil and gas production in the country and to ensure that oil and gas activities are undertaken in a manner that conserves the environment and biodiversity. The policy is based on five principles which are: using finite resources to create lasting benefits to society; efficient resources management; transparency and accountability; protection of environment and biodiversity; spirit of cooperation; and capacity and institutional building. Oil and gas activities are expected to have a positive impact on the countrys plan for modernization of agriculture through the enhancement of areas with multiplier effects, like provision of energy services and infrastructure to rural agro-processing industries, together with the increased use of modern and modernized agriculture through provision of more affordable inputs like fuels and fertilizers. The policy also addresses the cross-cutting issues between oil and gas activities and the countrys education and research plans, employment opportunities and patterns, population distribution, land ownership and use, energy availability together with relationship with other countries. The National land Use Policy 2007 The overall goal for the national land use policy is to achieve sustainable and equitable socio-economic development through optimal land management and utilization. The specific goals of this policy include ensuring adequately planned land use systems that provide for orderly and sustainable urbanization, industrial and infrastructural

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development; adopt improved agriculture and other land use systems that will provide lasting benefits for Uganda; to reverse and alleviate adverse environmental effects at local, national, regional and global levels; to promote land use activities that ensure sustainable utilization and management of environmental, natural and cultural resources for national socio-economic development; to ensure planned, environmentally friendly, affordable and well-distributed human settlements for both rural and urban areas; and to update and harmonize all land use policies and laws and strengthen institutional capacity at all levels of the Government. The policy has 33 policy statements ranging from making available on regular basis land use/land cover data which are of sufficient details an effectively disaggregated to enhancing implementation of regional and international conventions and other protocols to which Uganda is (or will be) a signatory and in compliance with national laws, policies regulations and guidelines. The need for an integrated approach towards land use planning is highlighted. The coordination of activities of all stakeholders in land use planning is emphasized. In particular the involvement of land owners, community groups, women, youth and the poor in making land use related decisions that affect them is regarded as being critical in the successful implementation of the policy. The National Industry Policy 2008 The vision of this policy is to build the industrial sector into a modern, competitive and dynamic sector fully integrated into the domestic, regional and global economies. The policy is based on the following principles: (i) exploiting and developing natural domestic resource-based industries such as petroleum, cement and fertilizer industries and promoting competitive industries that use local raw materials (ii) agro-processing; focusing on processing, leather and leather products and value addition in niche exports (iii) knowledge-based industries such as ICT, call centres, and pharmaceuticals that exploit knowledge in science, technology and innovations (iv) engineering for capital goods, agricultural implements, construction materials and fabrication/ jua kali operations. The policy has 12 specific objectives ranging from creating a business friendly environment for private sector led industrialization in which industries will develop, improve productivity and the quality of products through inter alia, creativity and innovation and become more competitive in the global economy to creating jobs for the widest section of the population. The Policy sets out strategic direction for industrial development in the country and the given principles are expected to be sufficiently robust to guide Uganda. The policy further addresses the constraints as well as priorities regarded as key to sustainable industrial development in the country. The National Policy for the Conservation and Management of Wetland Resources 1995 This Policy aims at curtailing the rampant loss of wetland resources and ensuring that benefits from wetlands are sustainable and equitably distributed to all people of Uganda. The Policy therefore calls for (i) no drainage of wetlands unless more important environmental management requirements supersede (ii) Sustainable use to ensure that benefits of wetlands are maintained for the foreseeable future (iii) Environmentally sound management of wetlands to ensure that other aspects of the environment are sustained (iv) Equitable distribution of wetland benefits and (v) Application of environmental impact assessment procedures on all activities to be carried out in a wetland to ensure that wetland development activities are well planned and managed. The Policy also highlights the key principles and identifies key ecological functions of wetlands in relation to water as maintenance of the water table, reduction of extreme flows, sediment trap, prevention of erosion downstream of wetlands, source of water supply, and prevention of pollution (nutrient and toxin retention). The National Environmental Management Policy 1994

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The overall goal of this Policy is Sustainable social and economic development which maintains or enhances environmental quality and resources productivity on a long term basis that meets the needs of the present and future generations without compromising the ability of future generations to meet their own needs. The Policy provides for establishment of effective monitoring and evaluation system to assess the impact of different sectoral policies and actions on the environment, population and the economy. Generally the National Environmental Management Policy seeks to: (i) (ii) (iii) (iv) (v) (vi) (vii) set the overall goal, objectives and key principles for environmental management; provide broad policy framework for harmonization of sectoral and cross-sectoral policy objectives, principles and strategies; transform existing environmental management systems to establish an integrated and multi-sectoral approach to resource planning and management; promote positive behavioral/attitudinal change in resource use provide the basis for the formulation of comprehensive environmental legal framework; establish an effective monitoring and evaluation system as well as an environmental impact assessment process and standards mechanisms; provide for an effective information management system to facilitate collection, storage , analysis and dissemination of environmental information, among others

The Policy under chapter three provides cross-sectoral policy objectives, principles and strategies for priority crosssectoral policies to enhance integrated and multi-sectoral systems approach to planning and management of resources and the environment for sustainable socio-economic development. Section 3.5 provides the objective foe water resource conservation and management as to sustainably manage and develop the water resources in a coordinated and integrated manner so as to provide water of acceptable quality for all social and economic needs The Policy also highlights the guiding principles and strategies to implement the Policy. The National Forestry Policy 2000 The Policy under its 8th statement which is on watershed management and soil conservation categorically states that, ...watershed protection forests will be established, rehabilitated and conserved. Based on that statement the Government declared to promote the rehabilitation and conservation of forests that protect the soil and water in the Ugandas key watersheds and river systems. According to this Policy, the following measures are provided: (i) (ii) (iii) Develop and promote guidelines on the management of riverside forests, Develop accompanying regulations to the provisions of the National Environment statute (1995), the Water statute (1995) and others relating to watershed management, soil conservation and the protection of riverbanks and lakeshores, Develop and promote awareness, educational and community mobilization programmes to promote good integrated land use practices in hilly areas and protect watersheds from degradation.

The National Fisheries Policy, 2000 This Policy was enacted purposely to guide the sustainable management and exploitation of fisheries resources in Uganda. Specifically the Policy aimed to give both the local government and local communities responsibilities in respect to sustainable fisheries resources management, development and utilization. Furthermore, the Policy called for legal recognition of fisheries communities and their and their rights of management of the resources in their respective localities.

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Aquaculture is highly emphasized in the Policy as one of the strategies for increasing fish production so as to have a balance between fish supply and demand. All these interventions have significant implication on water resources especially with respect to water quality issues. The National Health Policy The health Policy for Uganda clearly stipulates the need of better sanitation services to the people of Uganda. It therefore emphasizes the war against poor sanitation to be intensified so as to maintain the so far attained gains. The Policy prioritizes the support to local governments and authorities so as to improve sanitation and general hygiene. The Tourism Policy for Uganda This Policy and the related specific strategies addresses the tourism resource base, product development and marketing, general support and communication, development framework as well as regional and international cooperation. The Policy further identifies the major issues of strategic importance in the implementation of the policy which include increasing safety and security measures, improving the image of Uganda through a series of promotion and marketing, introducing new and tailor-made organizational structure to provide and appropriate development framework. The Policy also set interventions to be implemented under this Policy. Some of the interventions identified include sensitization of districts and communities in respect of tourism development and protection of cultural and natural resources, formation of district tourism associations and defining priority tourism projects for district and national tourism development. The National Gender Policy The Policy recognizes women and children as the main carriers and users of water. It emphasizes the importance of gender responsiveness in terms of planning, implementation and management of water and sanitation initiatives. The Policy stipulates its overall objective as to mainstream gender concerns in the national development process in order to improve the social, legal/civic, political, economic and cultural conditions of the people of Uganda and women in particular. The Policy specific objectives area: (i) (ii) To ensure the participation of both women and men in all stages of the development and planning process and To promote equal access to and control over economically significant resources and benefits

The Government based on the National Gender Policy developed the Water Sector Gender Strategy in January 2003 with the purpose of providing stakeholders with operational guidelines on how gender principles will be mainstreamed within the water sector and its goal is to develop empowering approaches that will enhance gender equity, participation and access and control to resources in the water sector and thus reduction of poverty. It was note during preliminary discussion that Uganda water Policy is being reviewed but it is anticipated that there will be no major changes. Important aspect for policy implementation is availability of funds for implementation. 3.3.2 Review of water related laws and regulations

Uganda has undertaken a series of ambitious legal and policy reforms with regard to property rights and resource governance The constitution of Uganda provides for an individual right to own property either individually or in association with others2 to a clean and health environment3, the constitution also gives fundamental rights to any citizen to seek legal
2

Article 26(1) of the Constitution of Republic of Uganda

36

redress for breach of right even if the same is done to another person, it gives a person a legal ground to stand before the courts of law4. The issue of land management and natural resources is addressed and the government is said to hold the land and natural resources in trust for the people of Uganda5, together with land management issues the environment is an issue that is recognized by the constitution and it provides for protection and preservation of the environment for sustainable development and promotion of environmental awareness6 In Uganda, water resources management issues are dealt with various legislations and as stated above the constitution which is the fundamental law recognizes that it is the duty of the state to take care of the management of natural resources including water in trust for its people of Uganda. The Water Act, as a principal law for the management of water resources in Uganda, provides for protection, management of water resources, supply, use and the constitution of water and sewerage authorities; and the development of water supply and sewerage undertakings and all other related matter. It also provides for planning, and control of water use7 this goes hand in hand with the objective of Uganda water policy (1999) which among the objectives is; to manage and develop the water resources of Uganda in an integrated and sustainable manner, so as to secure and provide water of adequate quantity and quality for all social and economic needs of the present and future generations with the full participation of all stakeholders The Water Resources Regulations (1998) and Water (Waste Discharge) Regulation (1998) prescribe the threshold and procedure for applications to construct any works that use or discharge water under the Water Act The Water Resources Regulations (1998) authorize the Director of the Water Development to grant surface water and groundwater permits, and to attach conditions to the permits. The Regulations provide for easements, water charges, register of waterworks, and penalties. In practice, citizens make considerable use of water without formal authorization. The Water (Waste Discharge) Regulations (1998) prohibit discharge without a permit issued by the Director of Water Resources. Several other water related legislation include National Environment Act, Cap 153, An Act to provide for sustainable management of the environment; to establish an authority as a coordinating, monitoring and supervisory body for that purpose; and for other matters incidental to or connected with the environment, it provides for environmental management regulations, rights, institutional arrangement such as establishment of National Environment Management Authority, which is an authority entrusted with environment issues, establishment of environmental standards, . Management of river banks and lake shores, Restrictions on the use of wetlands Management of wetlands, conservation, Management of forests Land use planning, Protection of natural heritage sites, Protection of the ozone layer, waste management, control and prohibition of pollution Land Act 1998 provides for management, ownership and tenure of land, The Act vests the rights of water resources to the government and provides for the Minister to regulate such utilization to land the owners, for domestic purpose and agricultural purposes. However the land statute has no power to control land degradation, the law need to have power to control land degradation. Irrigation is another major water use and in most cases targets wetland area there is no law relating to irrigated agriculture is scattered over many pieces of legislation, there is no legislation that deals specifically with irrigated agriculture.
3 4

Article 39 of the Constitution of Republic of Uganda Article 50 of the Constitution of Republic of Uganda 5 Article 237 of the constitution of Republic of Uganda 6 Article 245 of the constitution of Republic of Uganda 7 Ss 16,17, 18 and 28 of Water Resources Act 1995

37

The Water Act provides for the use, protection, and management of water resources and supply and for the constitution of water and sewerage authorities. The objectives of the statute are, inter alia, to allow for the orderly development and use of water resources for purposes other than domestic use, such as irrigation and agriculture, in ways that would minimize harmful effects to the environment. Domestic use, as interpreted herein, includes use for the purpose of irrigating a subsistence garden, general rights to use water for irrigation where there is a natural source of water are limited to irrigating a subsistence garden and extraction of water is prohibited unless authorized. The National Environment Act which established the National Environment Management Authority (NEMA) provides for the sustainable management of the environment among other things. Projects relating to dams, rivers, and water resources are to be considered for environmental impact assessment before they can take off. The NEMA, in consultation with the leading agency, is required to establish minimum water quality standards for different uses including water for agricultural purposes. 8 The Environmental Impact Assessment Regulations 13/1998 require a developer seeking to implement a project for which an environmental impact assessment is required under the statute to carry out such an assessment. However the environment impact assessment lacks the capacity to ensure that transboundary water resources are managed in integrated and environmentally sustainable manner as it lacks provisions relating to assessment of transboundary impacts. The local Government Authority Act 1998 provides for water resources maintenance, plan for interventions according to identified local priorities. It aims to put into effect the decentralization and devolution of functions, powers, and services. The provision and maintenance of water supplies is vested in the district councils in liaison with the Ministry responsible for Natural Resources. The National Forestry and Tree Planting Act (2003) provides for the conservation, sustainable management and development of forests; declaration of forest reserves for purposes of protection and production; the enhancement of the productive capacity of forests; promotion of tree planting; consolidation of law; and establishment of the National Forest Authority and the District Forestry Office. Other forestry related legislation includes: the National Environmental Management Act (1998); Amongst the principles that guide the sustainable environmental management as per the National Environment Management Act are conservation measures, maintaining ecological and landscape properly and to protect forests and agro-forestry and prohibiting the burning of grass in areas of intensive agriculture or on steep slopes Other sectoral legislation which touches on water resources management include The National Forestry and Tree Planting Act (2003) provides for the conservation, sustainable management and development of forests; declaration of forest reserves for purposes of protection and production; the enhancement of the productive capacity of forests; promotion of tree planting; consolidation of law; and establishment of the National Forest Authority and the District Forestry Office. This Act requires that forest reserves should be adequately protected and conserved because forests play a vital role in moderating of the climate and maintain the water table. The main weakness in the Forest Act is that it does not have adequate provisions relating to the management of private forests, which, like natural forests, play a major role in maintaining the ecological equilibrium. Other forestry related legislation includes: the National Environmental Management Act (1998);

Marty Matlock (Topic Editor) "Water profile of Uganda". In: Encyclopedia of Earth.

38

Amongst the principles that guide the sustainable environmental management as per the National Environment Management Act are conservation measures, maintaining ecological and landscape properly and to protect forests and agro-forestry and prohibiting the burning of grass in areas of intensive agriculture or on steep slopes National Environment (Wetlands, River Banks and Lake Shores Management) Regulations, 2000.The objective of these Regulations is to ensure wise use of the countrys wetlands. They require the undertaking of an Environmental Impact Assessment when any activity is to take place in a wetland and apply to both wetlands of national and international importance. The tool used in these Regulations to regulate and ensure wise use of wetlands is the discussed. The National Environment Act, therefore, has a number of provisions aimed at either preventing or stopping land degradation, The Act provides for the restriction of use of wetlands and cultivation of wetland and fishing activities9 The Land Act reiterates Article 237 (b) of the Ugandan Constitution on protection of natural resources which include wetlands; it also restricts issuance of land title in respect of wetland or within regulated lakeshore and river banks zones10 The Uganda Wildlife Act, 1996, provides for the sustainable management of Wildlife which is defined in broad terms to include both animal and plant species. It creates the Uganda Wildlife Authority as the principle institution charged with overseeing the management of wildlife. The Statute preserves community property rights so that local communities and individuals who have property rights in land within the protected areas are permitted to continue activities compatible with conservation of wildlife resources. The Local Governments Act, 1997, is also an important law for the enforcement of environmental law given the policy of decentralization as well as the policies relating to natural resource management at the lowest levels. This law provides for the system of local government, which is based on the District, which is the highest political authority at District level and has both legislative and executive powers. Under the District are the lower local governments and administrative units. The lower local government councils consist of sub-county councils (in rural areas), urban councils (in towns), division councils and village councils. The enactment of the Local Governments Act, 1997, and adoption of the Decentralization Policy made management of the environment a function of the Central Government. However, given the nature and definition of the environment, certain components of the environment, some functions of the environment have been decentralized to promote and encourage their democratic management. Fisheries Act 1964, is an Act which makes provision for the control of fishing, conservation of fish, processing of fish and matters connected therewith. Despite of having this Act still there a need for having coordinating bodies at various levels of governments, local, regional and international to carter for multi sectoral, because there is a large number of water related sectors having legislation of their own but their work are either duplicated, their mandate conflict one another and or are in conflict. Nile Basin Initiative and other regional bodies have responsibilities for the management of Transboundary water bodies and water ways. The Constitution (1995) empowers government to protect in trust all natural resources including water. There are also other laws enacted by the Government which govern water resources and those are mentioned above and they are the National Environment Act (1995),Wildlife Act1996, the Fisheries policy [2002, the Water Act 1995, National Forestry and Tree Planting Act (2003), Land Act 1995 just to mention a few. A number of institutions have a stake in the management of water bodies depending on use; there is usually a
9

10

Ss. 36 (1), a-d, ,36(3),of the National Environment Act 1995 Section 44 (4) of the Land Act 1995

39

conflicting resulting from their mandates. . The good example is in the Ministry of Water is the lead agency for water issues, but it's the responsibility of Ministry for Agriculture to provide water for production. The fisheries department is also responsible for managing the fish in Uganda, Wildlife Authority located in another ministry. The Wetland management in Uganda is in the most sectors because wetland management is cross cutting and many of them are not protected. It is always a challenge to coordinate all the key players involved in the management of water. There are no adequate mechanisms to co ordinate participation by the different that are often mandated to deal management of water resources and natural resources. This is topped up by inadequate laws and regulations, lack of law enforcement. The law enforcement which is a decentralized function needs to be beefed up with personnel, techniques and equipments to deal with the actual issues. There is a need of developing and harmonize national water laws to support the existing efforts towards water governance 3.3.3 Institutional Framework for management of water resources

The structure at national, district and local levels for handling the water resources management functions outlined above is as follows: National level: The Minister for responsible for water resources has overall responsibility for initiating the national policies, setting standards and priorities for water resources management in the country. The Water Policy Committee (WPC), advises the Minister on the above functions and initiate revisions to legislation and regulations and coordinate sector ministries' plans and projects affecting water resources. WPC also has the role to coordinate the formulation of an international water resources policy. Members of the WPC will come from relevant government ministries and departments, and will include representatives from district administrations, private sector and NGOs. The Chairman will be the Permanent Secretary of the Ministry of Natural Resources, and the Directorate of Water Development (DWD) will provide the Secretariat for the WPC. The functions and composition of the WCP are stipulated in the Water Statute (1995). District level: District Councils form a District Environment and Natural Resources Committee and a Department with the same name comprising water, environment, forestry and meteorology, coordinate existing extension staff in the areas such as water, community development, health, agriculture, fisheries and livestock - to ensure that water resources and environmental aspects form part of an integrated extension strategy. Municipal/Urban Council level: The districts, under the Local Government Act (1997), have responsibility for water supply services. Municipalities or town councils being large stakeholders in the water supply systems play a leading role in partnership with the water user groups/associations/authorities to operate, maintain and manage urban supplies for domestic and industrial use. The urban councils handle licensing of industries, solid and sewerage waste disposal and drainage systems, and hence, a increasing role to play in the management and protection of water resources. Sub-County level: Under the Local Government Act, the Sub-County is a legal entity. These entities have responsibilities in the areas of provision of water and sanitation services and protection of natural resources including water, with the assistance of the extension staff. Local level: at the local level Water user groups will manage, operate and maintain point water sources. The policy also provides for the formation of Community associations the purpose of managing resources such as a wetland area, a fishpond or an irrigation scheme when such a need arises. As well existing Local Councils (LC 1 - LC 3) and local government Chiefs play the role in setting local priorities and enforcing bye-laws, monitoring and mediating in water management issues.

40

River basin/catchment level: In the present policy provision has been made to create in future catchment level institutions to deal with water resources management in the respective catchment areas. In the present context, it has not been found necessary to establish catchment level institutions. Role of the Private Sector & NGOs and other interest groups: will partner with government in implementation of strategies set out in the water policy. Uganda is also heading towards establishing Water Resources Management Zones which will include a framework for stakeholder participation and establish Management Committees. These Zones are: (i) (ii) (iii) (iv) L. Victoria Water Management Zone L. Choga Water Management Zone Lake Albert Water Management Zone Upper Nile Water Management Zone

The Zones are important Units of Management which are similar to Kenya and Tanzania frameworks. Uganda plans to send officials to Zones starting from July 2011. Within each zone There will be catchments or Sub-zones where stakeholder will participate at that level. WRM is Central Government function; however according to WRM principle, there will be decentralization- lower level - Catchment/Zone. Uganda is also working to promote the Transboundary WR Management to be Transboundary WR Dept headed by a Commissioner. The Department will coordinate transboundary water resources function. 3.4 Rwanda National Policy and Legal Framework 3.4.1 Review of Water Related Policies National Water Policy The National Policy for Water Resources Management (2011) is the latest development in governments consistent and continuous efforts to strengthen the water resources management sub-sector. It replaces the 2004 policy and has been necessitated by the ill-alignment between the 2004 policy and Water Law No. 62/2008, which embraced many modern and cutting-edge principles of sustainable water resources. Additionally, the government has been introducing reforms in the water sector that have significantly changed the context for water resources management and rendered the 2004 policy out of date. The development of the 2011 policy, in keeping with the ideals of stakeholder participation, included a process of consultations with experts, senior managers and opinion leaders from different agencies and walks of life in the water sector. The current mining policy promotes the need to use modern mining techniques that minimise harm to land, forests, water, wetlands and the environment. However, due to inadequate implementation of the policy mining activities cause deterioration and pollution of water bodies. The WRM policy underscores the need to for appropriate minerals exploration and exploitation techniques to prevent pollution and deterioration of the quality and quantity of water bodies. The National Policy for Water Resources Management 2011 Rwanda is in the final stage of adopting a new water policy. This Policy has been formulated with the recognition of the strategic nature of water resources, and its vulnerability to depletion and pollution in the face of global climate change, rising population and growing economic development. Because of the understanding of the aforesaid

41

situation, the Government decided to put a robust framework for the conservation, protection and management of the countrys water resources. The prepared national policy for water resource management is intended to ensure that: (i) (ii) (iii) the national water resources are protected, conserved, managed and developed in an integrated and sustainable manner water resources of adequate quality and quantity are available for socio-economic and ecological needs of the present and future generations decisions affecting water resources management are made in a coordinated manner and with the participation of all stakeholders at local, national and transboundary levels.

The Policy has seven policy statements among of them are on water resources conservation, water allocation and shared water resources. The National Environmental Management Policy The overall objective of the Environment Policy is the improvement of mans well-being, the judicious utilization of natural resources and the protection and rational management of ecosystems for sustainable and fair development. Specifically the Policy aims at achieving the following: (i) (ii) (iii) (iv) (v) (vi) (vii) to improve the health and the quality of life for every citizen and promote sustainable socio-economic development through rational management and utilization of resources and environment; to integrate environmental aspects into all the development policies, in planning and in all activities carried out at the national, provincial and local level, with the full participation of the population; to conserve, preserve and restore ecosystems and maintain ecological and systems functioning, which are life supports, particularly the conservation of national biological diversity; optimum utilization of resources and attain a sustainable level of consumption of resources; to create awareness among the public to understand and appreciate the relationship between environment and development; to ensure the participation of individuals and the community in the activities for the improvement of environment with special attention to women and the youth; to ensure that the basic needs of todays population and those of future generations are met.

The National Environment Policy therefore contains policy statements and strategic options with regard to population and land-use management, management and utilization of natural resources and other socio-economic sectors, as well as the necessary arrangements for the implementation of the policy. It provides a framework for the reconciliation of the three pillars of sustainable development, namely environment, social and economic issues. It is thus in line with the policy for poverty reduction while ensuring the quality of life and environment. Economic Development and Poverty Reduction Strategy (2008 2012) This strategy paper clearly stipulates that the fight against poverty relies on sustainable economic growth and it is worth identifying the potential contribution of environment to this economic growth. The exploitation of natural resources has a direct impact on the quality of environment. The poor depend directly on resources and natural services for their livelihood, and they are often affected by the degradation of environment, particularly water and air pollution, exposure to toxic chemical products, etc. Moreover, the poor are particularly vulnerable to natural disasters such floods, drought in the east and south-east of the country, volcanic eruptions, as well as conflicts related to natural resource control, especially land resources. Nonetheless, poverty reduction cannot succeed without effective and real consideration of the environmental dimension. It is for this reason that Environment is one of the first priorities identified by the Poverty Reduction Strategy in Rwanda and is among the leading fundamental programmes selected within agricultural transformation

42

and rural development. Agricultural transformation and rural development must be accompanied by environmental protection activities such as earthworks, reforestation, water management and rational use of wetlands. The Poverty Reduction Strategy recommends also actions in the energy sector by promoting in a special way the rational use of wood and the promotion of alternative sources of energy. It supports water supply and actions likely to enhance rain water harvesting and utilization in towns and imidugudu villages. The National Land Policy 2000 The overall objective of this Policy is to establish a land tenure system that guarantee tenure security for all Rwandans and give guidance to the necessary land reforms with a view to good management and rational use of national land resources. Specifically the National Land Policy intends: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) To put in place mechanisms which guarantee land tenure security to land users for the promotion of investments in land. To promote good allocation of land in order to enhance rational use of land resources according to their capacity. To avoid the splitting up of plots and promote their consolidation in order to bring about economically viable production. To establish mechanisms which facilitate giving land its productive value in order to promote the countrys socio-economic development. To focus land management towards more viable and sustainable production by choosing reliable and time-tested methods of land development. To develop actions that protects land resources from the various effects of land degradation. To establish institutional land administration arrangements that enable land to have value in the market economy. To promote research and continuous education of the public in all aspects of duties and obligations with regard to land tenure, land management and land transactions. To establish order and discipline in the allocation of land and land transactions in order to control and/or curb pressure on land, inappropriate development, land speculation and land trafficking. To promote the involvement and sensitization of the public at all levels in order to infuse land use practices that are favourable to environmental protection and good land management. To promote conservation and sustainable use of wetlands.

The Policy further highlights general principles to guide the implementation of the Policy using various identified interventions so as to attain the set objectives. The National Rice Policy This Policy was formulated as response to increase of rice production in the country and thus necessitated concerted efforts aimed at (i) enhancing the productivity levels and (ii) raising the standards of post-harvest processing of rice. The Policy also wanted to enhance competitiveness of Rwanda rice through development and implementation of policies that insist on clear rules and procedures for programmes, institutions and budgets that direct in rice subsector. The Policy therefore aims at achieving the following objectives: (i) (ii) consolidate and efficiently use the land and water to improve productivity of existing rice cultivars in marshlands expand the area under rice cultivation by developing new marshlands and by diversifying the ecosystems under which rice is growing

43

(iii) (iv) (v) (vi)

improve access to and distribution of inputs such as seeds, fertilizers and pesticides to smallholder rice growers Enhance the quality of rice grains through improved management practices of harvesting, drying and storage of rice grains Introduce efficient and effective regulations on trading of rice grains in rural areas Raise the standards of milling operations and thereby improve the quality and competitiveness of locally produce rice grains

The further identifies strategies and options to enable realization of the set objectives. In all doing utilization of water is a main driver to implementation of rice policy. Investment in irrigation is stated as one of the strategic options where the water management committee is instructed to ensure adequate water supply even during dry season through water conservation during wet season, rain water harvesting, bore well irrigation among others. The National Policy and Strategy for Water Supply and Sanitation Services This Policy recognize the importance of adequate water supply and sanitation services as drivers for social and economic development, poverty reduction and public health and thus assigns high priority to this aspect. The overall objective of this Policy is to ensure sustainable and affordable access to safe water supply, sanitation and waste management services for all Rwandans, as a contribution to poverty reduction, public health, economic development and environmental protection. The specific objectives of the Policy are based on the various sub-sectors. For instance under water supply sub-sector, the specific objectives are: (i) (ii) (iii) Raise rural water supply coverage to 85% by 2012 and to 100% by 2020 the Districts to plan, design, finance and implement infrastructure projects Ensure sustainable functionality of rural water supply infrastructure by developing effective management structures and well-regulated public-private partnership (PPP) arrangements. Ensure safe, reliable and affordable urban water supply services for all (100% service coverage by 2012) while strengthening the financial viability of the Utility.

Under sanitation sub-sector, the specific objectives are: (i) (ii) (iii) (iv) (v) Raise household sanitation coverage to 65% by 2012 and 100% by 2020, and promote hygiene behaviour change. Implement improved sanitation for schools, health facilities and other public institutions and locations Develop safe, well-regulated and affordable off-site sanitation services (sewerage and sludge collection, treatment and reuse/disposal) for densely populated areas Enhance storm water management to mitigate impacts on properties, infrastructure, human health and the environment Implement integrated solid waste management in ways that are protective to human health and the environment

The National Forest Policy The overall goal of the forestry policy is stated as one of the bedrocks for sustainable development, thriving, developed, managed and utilized for sustainable benefits to all segments of society and the environment. Within the context of the overall goal, policy statements are set for the development of a permanent forest estate; forest-based industries; capacity building; urban and Peri-urban forests; farm forestry; commercial forest plantations; watershed management; education, training and research; tree germ-plasm and forest biodiversity conservation. Policy statement Number 7 on watershed protection states watershed protection forests shall be established, rehabilitated and conserved to protect soil fertility and water quantity and quality. Several implementation strategies are identified

44

including identifying, mapping and assessing the condition and status of major watersheds in Rwanda; Rehabilitating degraded forests in the watersheds; developing regulations and guidelines for management of lakeshore and riverbank forests; and developing educational material and mobilizing the population to protect watersheds. In order to implement this policy, the government places particular emphasis on the use of market mechanisms and incentives, eliciting realistic product prices and stimulating specialization and efficiency in forest resource utilization. Critical to this is the commitment and genuine involvement of all stakeholders in decisions that potentially affect them, their work and/or mandate. In addition, while the private sector shall occupy centre stage, the government will not abdicate its responsibility as a guarantor and custodian of public good. 3.4.2 Review of water related laws and regulations

The constitution of Republic of Rwanda of 4/6/2003 as amended provides that every citizen has the right to live in a safe and satisfactory environment, is obliged to protect, safeguard and ensure environment promotion11 The Water Law number 62/2008 states that water is a good belonging to the state public water is the domain of the state. Its use constitutes a recognized right in force to all in the scope of laws and regulation in use12 The water sector in Rwanda like the other countries in review has been going under a lot of reforms, currently the water resources management is governed by the existing water and sanitation policy developed in 2004. In 2008, the Law number 62/2008 on the use, conservation, protection and management of water resources. It incorporated principles of sustainable water resources management. Notably are the government significant reforms which revamped the water resources management systems which provides the legal framework for the implantation of new institutional arrangement based on the principles of the creation of a firewall between the management of water resources and water supply and sanitation services, institutional separation of service provisions from regulation and policy making, and finally, ensuring decentralization, participation, autonomy, accountability, efficiency and financial and ecological sustainability. Article 1 (1) (6) provides that the Organic law aims at conserving the environment, people and their habitats; setting up fundamental principles related to protection of environment, any means that may degrade the environment with the intention of promoting the natural resources, to discourage any hazardous and destructive means; promoting the social welfare of the population considering equal distribution of the existing wealth; considering the durability of the resources with an emphasis especially on equal rights on present and future generations; guarantee to all Rwandans sustainable development which does not harm the environment and the social welfare of the population; and setting up strategies of protecting and reducing negative effects on the environment and replacing the degraded environment.13 The law relating to environment includes sections for enforcement of the law and penal provisions section such article 87, 88, 89, 103, 105 and 111 of organic law and environment The primary legislation governing the forest sector in Rwanda is the Forest Law of 1988 (No. 47/1988). The Forest Law categorizes forestland as public, private or communal. The law governs forest management, exploitation of forest resources, forest conservation and tree-planting. The law includes sections for enforcement of the law and penal provisions. In 2006, the government enacted the Law Determining the Organization, Functioning and

11 12

Article 26 , 29 2-3 of the constitution of republic of Rwanda Article 3 of water law , law number 62/2008 of the laws of republic of Rwanda

13

Article 1 (1) (6) of Organic Law and Environment Law No. 04/2005 of the Laws of Rwanda

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Responsibilities of the National Forests Authority, The law and the establishment of NAFA represent an initial step toward developing an updated institutional framework for the management of Rwandas forestland Forestry partly governed by Organic law and environment since forest is regarded as part of the natural resources and it calls for appropriate actions to improve catchment management whose effect would be enhanced protection and conservation of forests as a measure to contribute to the water pollution control Article 52 provides the following: The State shall identify reserved areas for protection, conservation or rehabilitation of: 1) ecosystems; 2) forests, woodlands, species of biodiversity and protected zones; 3) monuments, historical sites and landscapes; 4) water systems and its quality; 5) banks and shores, rivers, streams, lakes, plains, valleys and swamps. Preventive measures on deforestation are also recommended since it has exhibited a negative impact on hydrological cycle especially precipitations Article 61of Organic law and environment provides that in the framework of conservation and protection of the environment, decentralised entities are particularly responsible for: 1) ensuring activities related to better management of land, especially controlling soil erosion and tap rain water; 2) a forestation, protection and proper management of forests; 3) efficient management of rivers, lakes, sources of water and underground water; 4) efficient management and effective use of swamps;5) protection and proper management of reserved areas, historical sites, endangered animal and Plant species.

3.4.3

Institutional Framework for management of water resources

Rwandas water sector is governed under a complex institutional framework, as shown in the table below. The institutions can be categorised into policy and oversight institutions, management and implementation institutions, service provision institutions and regulatory institutions. Table 2 Functions and Responsibilities for water Resources Management in Rwanda

No.

Institution

Ministry of Natural Resources (MINIRENA) Ministry of (MINALOC) Local Government

3 4 5 6 7

Ministry of Agriculture, Animal Resources (MINAGRI) and affiliated agencies Ministry of (MININFRA) Infrastructure

Ministry of Health (MINISANTE) Ministry of Family and Gender Promotion (MIGEPROF) Ministry of Education (MINEDUC)

Function and responsibilities related to WRM Policy and Oversight Institutions Formulation of Water resources management policy, strategic planning, coordination, quality assurance, monitoring, evaluation and capacity building. Put in place legal and regulatory framework. Establishment, development and facilitation of the management of efficient and effective decentralized government systems capable of law enforcement and delivery of required services to the local communities. Development, planning and coordination of the implementation of agricultural development policy in the country including irrigation, fishery and livestock. Development of institutional and legal frameworks, national policies, strategies and master plans relating to water supply and sanitation, energy and transport subsectors. Policy formulation and promotion of hygiene and public health. Coordination of gender, promotion and mainstreaming and family planning activities. Promotion of education including/capacity building and curricula development relating to water sciences and research on water

46

No.

Institution

Function and responsibilities related to WRM resources management in schools and other educational institutions. Policy formulation and promotion of investments by the private sector in water resources management/industries and manufacturing. Foreign and diplomatic relations including regional and international cooperation over shared waters. Mobilization and allocation of financial resources for water resources development. Provision and mobilization of financial and technical resources for implementing water resources management and development sector activities. Develop regulations and ensure protection and conservation of the Environment and natural resources across the Country. Enforcement of compliance by public utilities with the laws governing their activities. Provision of standards based solutions for Consumer Protection and Trade promotion for socio-economic growth in a safe and stable environment. Autonomous agency responsible for management of natural resources including water resources management and allocation Autonomous agency responsible for the delivery of water supply and sewerage services in the major towns and large urban centres including provision of oversight and support services to the local communities and other water supply service providers. Facilitation of investment and support services to investors. Management of water resources in the course of their productive and consumptive activities on a day to day basis Implementation of the government policies and laws Design, construction, operation and maintenance of water resources management infrastructure. Conduct training and capacity building for both central and local government staff. Provision of other commercial services. Supplement the public sector efforts in water resource management and development.

8 9

Ministry of Commerce (MINICOM) and affiliated agencies Ministry of Foreign Affairs And Cooperation (MINAFFET) Financing Institutions Ministry of Finance, Planning and Economic Development (MINECOFIN) Development partners Regulatory Institutions Rwanda Environment Management Authority (REMA) Rwanda Utilities Agency (RURA) Regulatory

10 11

12 13 14 15

Rwanda Bureau of Standards (RBS) Rwanda Natural Resources Authority (RNRA) Management/service Institutions Energy ,Water and Authority (EWSA) Sanitation

16 17 18 19 20 21

Rwanda Development Board (RDB) User Communities Districts Private Sector Non Governmental Organizations (NGOs)

The institutional framework operates through the sector wide approach, which applies in the planning and budgeting process. Under generally accepted principles of international law, Rwanda, as a riparian country within Nile and Congo River basins has a reciprocal obligation to utilise its shared water resources sustainably and equitably. It therefore has to cooperate with its neighbours in the management of the shared water resources, and avoid actions which can degrade the shared water resources and cause significant harm to other riparian States. Rwandas neighbours must equally respect and give effect to Rwandas right to utilise the shared water resources for its development needs. The principles of shared water resources management have been taken on board in key regional instruments to which Rwanda subscribes, including the East African Community Treaty and its Protocol for the Sustainable Management of Lake Victoria and its Basin, 2003, and the evolving Nile Basin Cooperative Framework.

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The Rwanda Natural Resources Authority (RNRA) was created through Law number 53 of 2010 and has the overall mandate of managing natural resources across the other sectors which include land, water, forests and minerals to ensure integrated natural resources management and participatory monitoring and evaluation in line with constitutional natural resources and environment which stipulates that: every citizen is entitled to a healthy and satisfying environment, has the duty to protect, safeguard and promote the environment, however the state has the overall mandate of protecting the environment and determines the modalities for the protection and promotion of the same. It derives from the diverse Environment and Natural Resources Sector and it encompasses other sectors of Environment Lands, Mines, Forestry, health, agriculture, energy, transport, ecotourism, and social development. Environmental issues are provided under the Organic Law N 04/2005 OF 08/04/2005 this organic law determines the Modalities of Protection, Conservation and Promotion of Environment in Rwanda. 3.5 Burundi National Policy and Legal Framework 3.5.1 Water Related Policies The National Water Policy According to NBI (2007) Burundi Water Policy was formulated in 2001 and it addresses issues related to sustainable development of water resources, rural hydropower development, use of water for productive sectors and institutional framework for water resources management. The policy recognizes the participation of the public sector and municipal authorities but it silent on the participation of private sector and other community based organizations. The Policy which is in the process of formulation will provide the general framework for water resources management in the country. It covers the aspects of access to domestic water supplies, rural hydropower development, increasing the use of water to provide for productive sectors, sustainable development of water resources, better mechanisms for coordination and capacity building. However need of soft tools for enabling better decision making on management of water resources. The issues of proper allocation of water resources to various uses is of great concern which need immediate attention so as to ensure sustainability of the environment and aquatic ecosystems. The issue of equitable distribution of water resources is also of relevant consideration for enhancing water distribution for both upstream and downstream users. Due to increasing concerns on climate change, establishment of rain water harvest technologies need also to be intensified. Other issues that need to be taken into consideration in order to attain integrated water resources management in Uganda include: (i) (ii) (iii) (iv) (v) (vi) (vii) abstraction permits to be issues after the proponent has a produced and EIA report intensify cleaner to avoid pollution on water bodies undertake research on water quality and quantity and their uses so as to enhance sustainability of the resource. Research also need to done to foster the scenario of food water print especially nowadays where production of food needs to be increased while water resources to enable such production are limited. mechanisms for protecting water sources are another area which need great attention so as to avoid water pollution. Protection of water sources can be achieved through introduction of agro-ecological systems to meet various demands in a harmonized manner, use of terraces to avoid soil erosion Enhance management of wetlands decision makers need to be capacitated and understand that wetlands are not waste lands and thus they have various functions such as productive and protection related function Aforestation programme need to be intensified to enrich the various watershed area and preference to

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be given to indigenous species. Environmental protection is accorded due weight by the government and it comprises the following aspects: (i) (ii) (iii) upgrading institutional, technical and financial capacities promoting national resources management and promoting the sustainable use of natural resources

The national water master plan which was developed in 1993 stipulates how rational and optimal development and management of water resources in the country can be attained. The master plan outlines the resource base, the structure of demand sector and assesses demand against supplies. 3.1.2 Review of water related laws and regulations Water Legislation The principal legislation related to water regulation and management in Burundi is the order of Council of 1992 on the institutions and organization of water in the public domain. However according to NBI (2007) this law is not enforced and hence Burundi lacks a functional water sector law Environmental Regulations Burundi enacted an environmental code in 2000 which sets principles of enhancing natural resources management and thus regulates the use of natural resources including licensing, water management plans and water quality standards. Carrying out environmental impact assessment as a pre-requisite for projects or activities likely to impact the environment. 3.1.4 Institutional Framework for management of water resources The institutional framework for water resources management in Burundi encompasses several institutions as indicated here under: The Ministry of Land Management, Environment and Tourism is vested with the overall responsibility of water resources management in the country. There will be Water and Sanitation Director General. It was noted during discussion that a good mission and vision relevant to current needs. Data and information gathering, management and dissemination is the responsibility of the Geographic Institute of Burundi The Ministry of Mining and Energy is entrusted for water supply and sanitation through the water and electricity utility for urban areas and water supply and sanitation for rural areas through the General Department of Water resources and Rural Energies Other ministries are also involved in initiating national policies and setting national standards and priorities for water management 3.6 Summary of Key Issues and Challenges Facing Lake Victoria Basin

The Lake Victoria Basin is endowed with a variety of natural resources which are the main stay of communitys livelihood. However these resources are currently under increasing pressure and thus their survivals are in jeopardy. Some of the pressures facing the natural resources in the Lake Victoria Basin include over exploitation of resources, losses of habitats and biodiversity, increased water pollution, habitat degradation and climate change.

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In order sustainable water resources management to be attained in the basin; concerted efforts are required to address the challenges and major issues of concerns facing the basin. Here under are some of the issues and challenges which need to be seriously addressed in order to attain the envisaged sustainable water resources management in the basin. (i) Controlling pollution

Pollution is one of the major challenges facing the Lake Victoria Basin. The situation is accelerated by poor farming practices which are responsible for soil erosion and thus water pollution and siltation of water bodies. Improving farming practices to control pollution. Activities related to cutting of trees and other vegetation covers detract the ecological system responsible for filtering mechanisms. When this ecological system is disturbed, the land and environment in general is prone to degradation. Pollution of water bodies is also due to inappropriate use of agrochemicals, discharge of wastes and effluents into water bodies. Existence of alien invasive species is another factor which lead to pollution of water bodies. The species are responsible of affecting food webs of fish and other aquatic organisms. Controlling the alien invasive species is one of the major issue to be addressed. (ii) Enhancing good governance

Partner countries need to strengthen enforcement of laws and regulations so as to realize the intended objectives. Enhancing good will also strength rule of law and thus corruption and malpractices at all levels of riparian states and local governments will be minimized. This will result into adequate transparency and accountability in public decisionmaking. (iii) Poverty

Poverty is another challenge facing the residences in the basin. It is estimated that more than half of the lake basin population is living on an income of less than 1 USD per day and relying heavily on subsistence production. In addition there is high level of illiteracy and low skills and lack of socio-economic incentives to meet the challenges of water related management and development. Furthermore mortality rates are high due to various diseases such as, tuberculosis and waterborne diseases like malaria, typhoid and bilharzias. It is also apparent that access to health care services is inadequate and health facilities are not well equipped. (iv) Inadequate human and financial capacities

This is also one of the major challenges facing water resource management in the Lake Victoria basin. Although it is true that always there is resource scarcity, the situation in the basin is more serious since there is acute inadequate capacity to plan, implement and monitor water resources management and development activities. It is beyond reasonable doubt that investing in the development of human and institutional capacity is very important to enhance effective planning, implementation and monitoring of water resources management activities. Equally important to the aforesaid capacity is to have sustainable mechanism for soliciting financial resources to implement the planned activities. (v) Sustainable allocation of water resources to various water needs

This is another challenges facing management of water resources management in the basin. The major concern issue is how best to allocate water for various economic activities and for sustaining the environment and other aquatic ecosystems.

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(vi)

Data and information exchange

Despite the fact the protocol for sustainable development of Lake Victoria Basin, Treaty for establishing East African Community and other regional agreement emphasize the need of sharing and exchanging data and information as a strategy for improving planning of water resources management activities, the practice has shown that partner states are not sharing and exchanging data and information for their partner consumption. This is a major challenge that needs to be addressed critically. (vii) Climate change

Climate change is another of the emerging issue of concern which need great attention in the basin if sustainable management of water resources has to be attained. Climate change has been responsible in food insecurity and other catastrophes in the basin. Currently there are inadequate coping strategies to mitigate the impacts related to climatic change. (viii) Security from water-related disaster

Occurrence of water related disasters leaves many people and their properties in situation which takes time to recover. Availability of precautionary measures is very important as a preparedness mechanism to occurrence of water related disasters especially during this era of climatic change catastrophes. However currently there are inadequate mechanisms for protection from flood and drought; prediction, planning and management of natural disasters as well as provisions for dam safety management (ix) Inadequate understanding of the values and functions of the basin ecosystems

Many stakeholders residing in the basin has poor limited understanding on the values and functions of the basin ecosystem and this result to poor management of the resources therein. Better understanding of the values and functions of the basin ecosystems would enable stakeholders to understand the socio-economic importance of environmental conservation and thus would facilitate to have scientific decision making regarding the use of environmental resources in the basin (x) Other issues of concerns

Other issues that posses challenges to the better ways of managing water resources in the Lake Victoria basin include Limited capacity to enforce legislations. This is due to the fact that all partner states have inadequate financial and resources capacity. Inadequate and overlaps of sectoral provisions Inadequacy of legal provisions to address environmental and natural resources management issues Majority of stakeholders particularly at grassroots have limited awareness of environmental laws Conflicts in the national policies, laws and regulations in the management of transboundary ecosystems. 3.7 Comparative analysis of water policies, laws and regulation (SWOC Analysis)

The review indicated that all countries except Burundi to some extend have placed high priority to water resource management due to the fact water has both social and economic value. National budgets have been set to ensure to some extent water resources management related activities are planned, implemented and monitored.

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The review further indicated that most of the policies have national focuses and transboundary related management issues are inadequately addressed. It was further noted that integrated approach as a framework for enhancing water resources management is used in almost all countries. However in Burundi the approach is still new and thus need to be intensified. Linkage of the various sectors was noted to be addressed under the environmental management policy which has integrated other sector policies such as land, agriculture, water, irrigation, gender and trade to mention the few. It is worth noting that all the partner states under their various respective policies emphasized the need of integrated water resource management despite the fact that its implementation is taking a low pace so as to realize the envisaged objectives. Water allocation and transfers for instance in Uganda are governed by the agreed principles in all countries. Water rights are vested to the government and thus government intends to have equity in water distribution to their people. The first priority is accorded to domestic use. Availability of water for sustainability of the environment is also considered as a priority in water allocation. All policies clearly indicates that allocation of water for production should take into consideration the socio-economic value of the use and optimal development of the water potential and the associated impacts on water resources. The policies also recognize that in order to allocate water in response to emergencies an assessment study be done and develop scenarios that can assist to determine whether allocation to targeted users be adjusted during such period. However constraints are encountered in addressing this and hence suggest using the market based approach to rectify the situation. All water abstractions and effluent discharges into water bodies are subject to water use permit or discharge permit. The permits are granted after the relevant authorities have ascertained the benefits of water use and the proponent has paid the needed fee. During the review process it was noted that all countries have institutions in place that are responsible for managing water resources at national and local levels. The following specific institutional arrangements have been identified as key: Government ministries/agencies/departments are vested with overall coordination, strategy and policy formulation. All countries have adopted a decentralized system of governance. Kenya uses catchment areas, Tanzania uses River Basins, Uganda uses district management but is moving towards Zones which are similar to Tanzaniaa and Kenyas systems, Rwanda uses local government authorities but recognizing IWRM as a guiding framework for managing and developing water resources. At the community level, all the countries have established water user groups. 3.7.1 Strengths (xii) (xiii) All countries have water related policies, laws and regulations Existence of expertise and knowledge on national and regional programme planning and implementation (xiv) Existence of national authorities with specific mandates related to water resource management (xv) Experience in transboundary cooperation framework under Nile Basin Initiatives and East Africa Community through the Lake Victoria Basin Commission (xvi) Existence of sectoral policies with their associated laws and regulations (xvii) Existence of integrated water resource management strategies in partner states (xviii) Existence of participation framework for community and other stakeholders in implementation of water related management interventions SWOT Analysis of the Existing Policy, Legal and Regulations

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(xix) (xx)

Existence of EAC and NBI legal and institutional framework Existence of programmes for harvesting, storage and use of rain water as coping strategies to climatic change (xxi) Existence of water use associations at community level (xxii) Existence of educational and research institutions in the region Weaknesses (x) (xi) (xii) (xiii) (xiv) (xv) (xvi) (xvii) (xviii) Opportunities (vi) (vii) (viii) (ix) (x) Existence of EAC and Lake Victoria basin legal and institutional framework Existence of interested donors to work in the basin Interests of the international community in attaining MDGs targets on integrated water resources management Potential mutual socio-economic benefits from joint win-win development interventions in the basin Common legal history evidenced in similar laws and the common law background facilitate harmonization process Inadequate funds allocated to water resource management by governments Inadequate institutional capacities at national, regional/province, district and local levels Inadequate sharing of important data on management of water resources Limited regional focuses on water resource management issues Weak enforcement of laws Transboundary water resources management policy, legal and institutional frameworks not well elaborated other than for Lake Victoria and Policy statements Multiple agencies with no clear framework of operations and thus creates conflicts and coordination challenges Inadequate innovative research activities on integrated water resource management Inadequate advocacy capabilities by civil society organization on water resource management

Threats/Challenges (xvi) Adequate prioritization of transboundary water resources management cooperation among riparian countries (xvii) Management of alien invasive species in lake Victoria basin and other water bodies (xviii) Controlling of watershed degradation (xix) Development of effective climate change mitigation measures (xx) Accelerated destruction of water resource ecosystems. (xxi) How best to carry out environmental flow assessment (xxii) Delay in finalizing an agreement on the Nile Basin to address transboundary Nile Water resources policy and institutional framework, holistically, creating risks of desegregated and disjointed actions (xxiii) Have sustainable funding sources for water resource management activities (xxiv) Strengthen information sharing among partner states (xxv) Strengthening capacity of local community groups so as to bring positive impact on water resource management (xxvi) Put in place effective mechanism for natural disaster and dam safety management (xxvii) Effective capacity building programme to enhance implementation of water resource management (xxviii) Advocacy on integrated water resource planning to enhance sustainability of water resources (xxix) Enhance proper communication to avoid mistrust among partner state members (xxx) Effective laws and regulations enforcement.

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4.

REVIEW OF EXISTING REGINAL AND INTERNATIONAL TREATIES, PROTOCOLS, CONVENTIONS AND AGREEMENTS

4.1

East African Community

4.1.1

The East African Treaty 1999

This is a Treaty for the establishment of the East African Community (EAC). The founder members of the EAC are the United Republic of Tanzania, Republic of Kenya and Republic of Uganda as provided in Article 3(1) of Treaty. The Republic of Burundi and the Republic of Rwanda became Partner States after acceding to the Treaty pursuant to the provisions of article 3. For purposes of the development of the new policy on the Lake Victoria Water release curve this review gives more emphasis to provisions relating to water resources management and development. 4.1.2 Areas of Cooperation

According to the Treaty, the Partner States agreed to cooperate in the following areas: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) (xiii) (xiv) (xv) Trade liberalisation and development Investment and Industrial development Standardisation, quality assurance, metrology and testing Monetary and financial Infrastructure and services Human resource, science and technology Free movement of persons, labour and services Agriculture and food security Environment and natural resources management Tourism and wildlife management Health, social and cultural activities Enhancing the role of women in socio-economic development Political matters Legal and judicial affairs Private sector and civil society

The water resources management and development are covered under the area of environment and natural resources management. 4.1.3 Objectives and key Principles of the Treaty

The objectives of the EAC are provided under article 5 of the Treaty. One of the objectives is the commitment to ensure the promotion of the sustainable utilisation of the natural resources of the Partner States and the taking of measures that would effectively protect the natural environment of the Partner States [art. 5(3)(c)]. In order to achieve the objectives spelled out, the Treaty sets out principles on which the water resources shall be managed, utilised and developed. In this regard the key principles as provided in Article 6 are: (i) Equitable distribution of benefits

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(ii) (iii)

Co-operation in mutual benefits Mutual trust, political will and sovereign equality.

These principles are consistent with the principle of pacta sunt servanda provided under the provisions of article 26 of the Vienna Convention on the Law of Treaties 1969. Article 26 of the Vienna Convention provides: Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Therefore, the Partner States who are parties to the Treaty are bound by the Treaty and therefore shall perform their obligations under the Treaty in good faith. The signal to adhere and the willingness to achieve the objectives of the Treaty is manifested by already taken steps such as the establishment of the Lake Victoria Basin Commission for the management of Lake Victoria Basin and the decision of the Council of Ministers to formulate a new water release policy for Lake Victoria. Surely and obviously other things being equal, these actions will make the utilisation of the water resources of Lake Victoria to be more equitable and sustainable. 4.1.4 Commitments of the Partner States

Despite the fact that natural resources are vital for economic and socio development, development activities may affects them even if not involved directly. The Partner States having recognised that development activities may have negative impacts on the environment leading to the degradation of the environment and depletion of natural resources, agreed to take concerted measures to foster co-operation in the joint and efficient management of and sustainable utilisation of natural resources and provide prior and timely notification and relevant information to each other on natural and human activities that may or are likely to have significant trans-boundary environment impacts and shall consult with each other at an early stage [art. 111(1)(a) and (d)]. Further paragraphs (c) and (d) of subarticle 2 of article 111 provides as follows: Article 111(2) provides that action by the Community relating to the environment shall have the following objectives: (c) to ensure sustainable utilisation of natural resources like, lakes, wetlands, forests and other aquatic and terrestrial ecosystems; and (d) to jointly develop and adopt water resources conservation and management policies that ensures sustenance and preservation of ecosystems. Thus, despite the fact that development activities are very important for economic growth of any country, measures should be taken to avoid depletion of the natural resources. It is clear that water resources are capable of being diminished therefore they should be utilised in sustainable manner. Regarding the management of water resources, the Partner States agreed to co-operate through establishment of a body for the management of Lake Victoria as provided in Art. 114(2)(b)(vi) of the Treaty. And according to article 151 of the Treaty the Partner States shall conclude such protocols as may be necessary in each area of cooperation to spell out the objectives and scope of and institutional mechanisms for co-operation and integration hence the adoption of the protocol for the sustainable Development of Lake Victoria Basin. 4.2 Protocol for Sustainable Development of Lake Victoria Basin

4.2.1 Preamble Kenya, Uganda and Tanzania signed a treaty for the formation of East Africa Community (EAC), in November 1999, and committed itself to a partnership based sustainable development approach that recognizes Lake Victoria as an economic growth zone. Rwanda and Burundi later acceded to treaty in 2005. The Lake Victoria Basin Commission (LVBC) was created by the East Africa Community member States as the vehicle through which collaboration in

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sustainable development shall be pursued. The LVBC is governed by a protocol of 2003 entered between the participating states and is charged with the responsibility of overseeing socio-economic and livelihood improvement of the peoples of East African through coordinating all forms of development in the riparian States. This outfit is based in Kisumu, Kenya and has an Executive Secretary as its Chief Executive. The Protocol provides for sustainable development of the Lake Victoria Basin and LVBC was formed to ensure exactly that. Riparian States are expected to cooperate in order to promote peace and stability and that there is equitable sharing of the benefits from the shared resources within the basin. As a nation, Kenyas development dream is to spur wealth generation through empowering the populace, particularly in the agricultural sector. The Lake Victoria basin supports about 50% of Kenyas population and has over 50% of the countrys water resources endowment, thus is a very critical area in Kenyas economy. It is against this background that a comprehensive inventory is necessary so as to determine each Countrys contribution to the L. Victoria shared basin and consequently determine equitable and reasonable benefit from this common resource. In adopting the protocol the Partner States (thereafter the parties) have regonised the following: (i) The need for increased investment in the field of energy, transport, communication, infrastructure, tourism, agriculture, fisheries, livestock, forestry, mining and other areas of social and economic Endeavour to spur development and to eradicate poverty in the in the Lake Victoria Basin. There is therefore need to have a release policy that encourages such developments. The current policy has resulted into the receding of the lake levels to the extent that affect, marine transport, fishing, tourism and water intakes for socio-economic development among others hence the need to review the existing release policy. That development activity may lead to degradation of the environment hence the need to have a release policy that will avoid depletion of the natural resources and promote clean and healthy environment which is a prerequisite for sustainable development. The current release curve does not allow flood water harvesting in the lake during the high rainfall seasons and hence result into the depletion of the lake water resources during the low rainfall seasons. Therefore, there is need to have a release policy that would take advantage of the high rainfall seasons, release only the amount that is required as compensation flows and store the excess waters in the lake to be released during the low rainfall seasons in order to avoid the receding of the lake levels during the low rainfall seasons. This storage is possible within the two metre fluctuations levels of 1134.5 m to 1136.5 m. That water is a finite and vulnerable resource essential to sustain life, development and the environment and must be managed in an integrated and holistic manner, linking social and economic development with protection and conservation of natural ecosystems. That water is an economic good having social and economic value, whose utilization should give priority to it most economic use taking cognizance of basic human needs and the safeguarding of ecosystem. The current release policy therefore does not support this recognition as it allows excess water during the high rainfall seasons to go to waste as of the over 1000 cubic metres per second released at owen falls a good amount of this flow is lost in the Sudd swamp and ends up as wastage. The treaty therefore obliges the parties to cooperate in relation to Lake Victoria Water Basin in a coordinated and sustainable manner and that the parties have agreed to negotiate as a block on issues relating to the basin. This therefore does not encourage or allow bilateral agreement between one partner State and another State as in the case of the 1991 exchange of notes between Uganda and Egypt that becomes parties to agreements that affect the other partner States. Further the partner States have designated Lake Victoria as an economic growth zone.

(ii)

(iii)

(iv)

(v)

(vi)

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4.2.2

The parties to the Protocol

The parties to the protocol for sustainable development of Lake Victoria basin are the Partner States of the East Africa Community namely Kenya, Uganda and Tanzania, Rwanda and Burundi. The five States enjoys close historical, commercial, industrial cultural and other ties. These collaboration and ties made the States to sign a treaty for the establishment of the east Africa community on 30th November, 1999. Rwanda and Burundi have acceded to the treaty and to the protocol as their territories fall within the Lake Victoria Basin and now the Executive Secretary of LVBC is from Rwanda. 4.2.3 The Scope of the protocol

The partner States have agreed to cooperate in areas as they relate to the conservation and sustainable utilization of the resources of the basin including the following: (i) (ii) (iii) (iv) (v) (vi) Sustainable development, management and equitable utilization of the water resources Management of the basin and fisheries resources Promotion of sustainable agricultural land use practices including irrigation Maintenance of navigation safety and maritime security. Improvement of public health with specific reference to sanitation Promotion of research, capacity building, information exchange, public participation in planning and decision making, wildlife conservation and sustainable tourism development. Principles

4.2.4

Article 4 of the protocol provides principle on which the water resources shall be managed in accordance with the principles set out in Articles 5,6,7 and 8 in the EAC treaty. The key principles of which the water resources shall be managed are: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) 4.2.5 Equitable and reasonable utilization of the water resources Prevention of causing significant harm to other partner States in line with precautionary principle. Sustainable development Providing information on planned measures that may have adverse effects upon other States Polluter pays principle whereby the person that causes pollution shall bear the cost associated with it. The principle of community interest in the shared water resources The principle that water is asocial and economic good and finite resource The principle of subsidiarity Rights and Obligations

Article 5 gives the Partner States the right to use the water resources within their territories in and equitable and reasonable manner. The protocol further gives each partner States their equitable and reasonable entitlement share in the beneficial use of the water resources of the basin. To ensure equitable and reasonable use of the water resources of the basin, the protocol sets out factors to be

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considered. Such factors do not limit the use of the water resources within the basin as in the case of other agreements governing the use of the shared water resources. Article 6 gives the Partner States a duty to protect, and conserve and where necessary rehabilitate the basin and its ecosystems. Article 13 gives the Partner States further specific duties to notify other partner States on the any planned measures which may adverse effect to other States and consult with the other partner states where necessary and take care of the interest of other partner states. One should not that in the protocol the wordings prior notification has been used as opposed to those used in the Draft Nile River Basin Cooperative Framework where the wordings information on planned measures has been used. The difference is that prior notification as used in the international law carries consent and veto to some extent while information on planned measures does not necessarily call for the other parties consent but only as a means to take care of the their concern with regards to planned measures. One would therefore be only comfortable to use words prior notification when dealing with parties whom they have longer friendly ties with like the EAC Partner States and not to accept to be bound by such words while at sea. Articles 16 and 25 give each Partner States an obligation to monitor activities and natural phenomena, water quality and quantity within their area of jurisdiction in order to determine the risk they pose to the resources of the basin and its people. Where there is a threat, the Partner States shall undertake such precautionary, pre-emptive and remedial measures as may be necessary in the circumstances. In addition the Partner States shall adopt standardized equipment and methods for monitoring water quality, quantity and natural phenomena. Article 16 therefore gives the EAC Partner States through Lake Victoria basin Commission to review the policy of the current release curve that today is contributing the receding of the lake levels. Article 24 gives the Partner States an obligation to exchange readily data available and relevant data and information on a regular basis on existing measures and on the condition of the natural resources of the basin in a useable format. 4.2.6 Review on mainstreaming of protocol for sustainable development of lake Victoria Basin into Water related Policies, Laws and Regulations

The EAC partner states developed a protocol for sustainable development of Lake Victoria Basin. This Protocol governs the cooperation of partner states in sustainable development of Lake Victoria Basin. The protocol outlines fourteen areas relating to the conservation and sustainable utilization of the resources of the Basin. Among the areas agreed for include sustainable development, management and equitable utilization of water resources; sustainable development and management of fisheries resources, promotion of sustainable agricultural and land use practices; promotion of development and management of wetlands. In addition in 2006 the Partner States signed a shared vision and strategy framework for Lake Victoria Basin commonly known as the East African Community Popular Version for Lake Victoria. The common direction under the shared vision is set along fiver main pillars referred as policy areas which have clear strategies and indicators of achievements. The five policy area are Ecosystems, natural resources and environment; production and income generation; living conditions and qualify of life; population and demography; and governance, institutions and policies. This protocol was formulated after realization of the threats and challenges facing the Lake Victoria Basin. The major threats and challenges observed to be critical to the Basin include over abstraction; destruction of filtering mechanism; discharge of agrochemicals, wastes and refuse to water bodies; decreasing of fish biodiversity and altered food webs; high population density; encroachment on wildlife; gender inequality and conflicts on the use of Basin resources The shared vision statement under policy area one which is on Ecosystems, natural resources and environment is A

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prosperous livelihood and enhanced management of ecosystems, natural resources [and] a clean and healthy environment The success of achieving the stakeholders aspirations under this policy area is hinged on the harmonization, coordination and enforcement of policies and legislative frameworks to support the conservation and management of the ecosystems, natural resources and environment and encouraging collaboration with and promotion of participation and investment by the public, CSOs and private sectors. This implies that all partner states are required to strive to have sustainable utilization of ecosystems, natural resources and environment as well as to foster collaboration with and participation of various stakeholders. Harmonization of Policies, laws and regulations is a requisite to attain this policy area. The policy review indicated that the agreed issues for cooperation under the protocol to a large extent were mainstreamed into various national policies of the partner states (see annexon mainstreaming matrix of the protocol). For instance sustainable development, management and equitable utilization of water resources is well elaborated by the National Water Policies for Tanzania, Uganda and Rwanda. Promotion of research, capacity building and information exchange is also narrated in various national policies. However although it is stipulated that partner states to exchange information to enhance sustainable utilization of the resources, there was all signs of lack of cooperation on this issue probably due to lack of properly set mechanisms to effect it. Application of polluter pays principle was also noted to lack effective mechanisms to enforce it. However efforts that have been done by the partner states to mainstream the protocol into national policies is recognized and commended as a achievements towards having sustainable development in the Lake Victoria Basin. It is however important to strategize to enhance more effective mainstreaming and to actually implement what have been agreed for the sustainability of the resources in the Basin. 4.3 Treaties and Conventions 4.3.1 The Position of the Partner States in regards to the Existing Colonial Agreements

First, one would like to know what a treaty is. Article 2 (1)(a) of the Law of Treaties14 defines a treaty as an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation Though there are several legal instruments on the Nile River, only key agreements touching on Kenya analysed in order to determine the implications the modifications of the current release curve would have on such treaties. Exchange of notes between Her Majestys Government in the United Kingdom and the Egyptian Government on the use of waters of the Nile for irrigation dated at Cairo on 7 May 1929. The exchanges of Notes are on two legal instruments as follows: No I: Mohamed Mahmoud Pacha to lord Lloyd, Office of the Council of the Ministers; (dated Cairo, 7 May 1929) No 2: Lord Lloyd to Mahmoud Pacha (dated The Residence Cairo, 7 May 1929) From the definition above it is clear that the exchange of notes on 7 May 1929 between Her Majestys Government in the United Kingdom and the Egyptian Government on the use of waters of the Nile for irrigation is embodied in two

Vienna Convention on the Law of Treaties, May 23, 1969, 115 UNTS 331, reprinted in 8 ILM 679 (1969) (entered into force 27 Jan. 1980) [hereinafter, Vienna Convention].
14

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related instruments that are literary referred to as the 1929 Nile Waters Agreement or the 1929 Nile Waters Agreements. In international law one would expect a Treaty or Agreement in force to have been negotiated, signed and ratified or acceded to by parties. One would therefore, not be seen to be at fault to refer the 1929 Nile waters agreement as only exchange of notes between the United Kingdom and the Government of Egypt. It is true that legal instruments referred above were exchange of notes. A similar scenario is the exchange of notes in 1993 between Ethiopia and Egypt as listed on FAO website as the 1993 agreement between Ethiopia and Egypt. Today both the Egypt and Ethiopia would never like such exchange of notes to be referred to as a Treaty or Agreement but by the above definition deposition of such legal instruments automatically qualifies to be referred to as a Treaty or Agreement. Second, one would like to know what the 1929 Nile waters treaty provides in a nutshell. The key provision of Mahmoud Pashas note that forms part of the 1929 Agreement and is highly contested by the upper riparian States is paragraph 4(b) of 7th May 1929 that states: Except with the prior consent of the Egyptian Government, no irrigation or power works or measures are to be constructed or taken on the River Nile or its branches, or on the lakes from which it flows so far as all these are in the Sudan or in countries under British administration, which would in such a manner as to entail prejudice to the interest of Egypt, either reduce the quantities of water arriving in Egypt, or modify the date of its arrival, or lower its level. In plain language this provision denied the use of the Nile waters by Sudan and any other riparian States, which were under the British administration by 1929 apart from Egypt. If the agreement was to be considered in force then one would argue that Kenya, Uganda and Tanzanian are free to use the waters from the rivers feedings the Lake Victoria as the rivers are not branches of the Nile River as the 1929 had fixed the lakes as the source of the Nile and its branches. This argument also conforms with the 1997 UN Watercourses Convention that restricts the convention to watercourses and not to wider basin. The other provision that restricted other riparian States from the use of the Nile waters is that of paragraph 4(d) of the same Mahmoud Pashas note that reads: In addition any works so constructed were to be administered under the direct control of the Egyptian Government and before undertaking such works, that Government was to agree with local authorities on the measures to be taken for safeguarding local interests. The main reason given by Egypt as per paragraph 2 of Mahmoud Pashas Note is to safe guard Egypts natural and historic rights in the waters of the Nile and its requirements of agricultural extension. The 1959 Nile Agreement for full utilization of the Nile waters was explicitly bilateral to Egypt and Sudan. Consequently, in line with the general rule of international Law, such a treaty creates neither rights nor obligation for third States (i.e. States which are not parties to the treaty). This is straight and clear and therefore have no obligation on Kenya, Uganda and Tanzania. Third, one is whether the 1929 Nile waters agreement is binding. Under the 1929 agreement the key provisions that requires Kenya, Uganda and Tanzania and even Sudan to use the waters of Lake Victoria and the Nile with the acquiesce of Egypt are stated above. Upon its independence, Tanzania formally invoked the Nyerere Doctrine. In a formal declaration to the SecretaryGeneral of the United Nations, the Tanzanian government accepted with stipulations all bilateral treaties, which were signed by UK had signed on her behalf. Such treaties would remain in force on the basis of reciprocity for two years from 1960 unless abrogated or modified earlier by mutual consent. Tanzania also issued identical notes to Britain, Egypt and Sudan outlining her policy on the utilization of the Nile waters. Tanzanias government asserted that the Nile Agreement was not binding but agreed to negotiate with all riparian states to formulate a new framework based

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on just and equitable principles. Following their independence, Uganda and Kenya, respectively, adopted the Tanzanian approach but they did not specifically challenge the devolution of the Nile Agreement. Kenyas position vis-avis the status of Nile treaties has been clear and equivocal. On attaining independence, Kenya adopted the Nyerere Doctrine and declared her intention not to be bound by the Nile treaties entered into on her behalf by the United Kingdom. The declaration were made by then Prime Minister of Kenya and communicated to the Secretary General of the UN on 25th March 1964. It was on the succession of treaties extended or applied to Kenya by the Government of the United Kingdom prior to independence. The Declaration gave a grace period of two years within which to re-negotiate the treaties. At the expiry of the aforementioned period of two years the Government of Kenya will consider these treaties, which cannot be regarded as surviving according to the rules of customary international law as having terminated. The period of the two years is intended to facilitate diplomatic negotiations to enable the interested parties to reach satisfactory accord on the possibility of the continuance or notification or termini nation of the treaties. On 12th December 1965, the government extended the period of Declaration for two years up to 12th December 1967. It is notable that within the four-year grace period given by the Government there were no diplomatic negotiations as contemplated by declaration. It is therefore, rightly presumed that the validity if any of such treaties lapsed upon the expiry of the period ending on 12th December 1967. The government has since firmly maintained her position of nonrecognition of the Nile treaties. In 1929 Tanzania (then Tanganyika) was under the British administration therefore this agreement was effective and binding. Similarly the other two East African Countries Kenya and Uganda were under the British administration. The subsequent Nile waters agreements had never altered the provisions of the 1929 agreement. 4.3.2 The 1929 Nile Water Agreement

In 1991, the Ugandan Government entered into another agreement with Egypt accepting all the existing treaties and the agreed curve thereby repudiating its own long-standing policy of 1963 of denying the validity of the agreement. This agreement/treaty has never been ratified in accordance with the Uganda National Laws as the Constitution of the Republic of Uganda provides that international agreements shall be effective upon ratification therefore. The 1945 UN Charter analysed above provides for exploitation of the international water resources with duty not to cause significant harm to other riparian States. Efforts to modify the current agreed curve will be in line with UN Charter and the protocol for the sustainable development of the Lake Victoria Basin and the Draft Nile River Basin Cooperative Framework. 4.3.3 The Agreement between the United Kingdom and Belgium regarding water rights on the Boundary between Tanganyika and Ruanda-Urundi, 1934

In this agreement the United Kingdom acted on behalf of Tanganyika and the Belgium on behalf of Ruanda Urundi. Article 1 of the agreement provided that: Water diverted from part of a river or stream wholly within the Tanganyika Territory or Ruanda-Urundi shall be returned without substantial reduction to its natural bed at some point before such river or stream

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flows into the other territory, or at some point before such river or stream forms the common boundary between the two territory Further article 2 of the agreement prohibited the operations of mining or industrial nature which may in any way lessen or otherwise interfere with existing navigable waters in any other river or stream. It is obvious that the two agreements and others agreements concluded prior to 1961 on behalf of Tanzania were applied during the period of pre-independence. Upon attaining her independence Tanzania expressed her consent or otherwise in relation to treaties applied by the colonial government. The effects of the Nyerere doctrine in relation to pre-independence treaties was that unless such treaties were abrogated or modified by mutual consent they will cease to apply after the two year period from Independence Day. Despite that fact on 4 July 1962 the Tanganyika Government addressed identical Notes to the governments of United Kingdom, the United Arab Republic of Sudan, Kenya and Uganda outlining its policy on the use of the waters of the River Nile as follows: The Government of Tanganyika, conscious of the vital importance of the waters of Lake Victoria and its catchment area to the future needs and interests of the people of Tanganyika, has given the most serious consideration to the situation that arises from the emergence of Tanganyika as an independent sovereign State in relation to the provisions of the Nile Waters Agreement on the use of the waters of the entered into 1929 by means of an exchange of Notes between the Governments of Egypt and the of the United Kingdom. As a result of such consideration the Government of Tanganyika has come to the conclusion that the provisions of the 1929 Agreement purporting to apply to countries under British Administration are not binding on Tanganyika. At the same time, however, and recognising the importance of the waters of the Nile that have their source in Lake Victoria to the Government and peoples of all the riparian States, the Government of Tanganyika is willing to enter into discussion with other interested Governments at the appropriate time, with a view to formulating and agreeing on measures for the regulation and division of the waters in a manner that is just and equitable to all the riparian States and of the greatest benefit to all their peoples. In the mean time the Government of Tanganyika for its part attaches considerable importance to a continuation of the present arrangements whereby technical experts from the United Arab Republic, the Sudan and the three East African countries of Tanganyika, Kenya, and Uganda meet at intervals to discuss common technical problems connected with the use of the waters of the Nile. [Quoted at pp. 90-91: Tanzania Treaty Practice by E. E. Seaton and S. T. Maliti , 1973] 4.3.4 The 1929 Nile Water agreement between Egypt and Sudan

This was essentially a result of the British- instituted Nile commission to appropriate water between Egypt and the emerging needs of the Sudan. While most of the provisions related to Egypt and Sudan relations, clause 4 of both the British and Egyptian Notes obliged Britain not to develop any hydraulic works without the consent of Egypt. The Note provided that Save with the previous agreement of the Egyptian Government, no irrigation or power works or measures to be constructed or taken on the River Nile and its branches or on the lake from which it flows, so far as these are in the Sudan or in countries under British Administration which would, in such a manner as to entail any prejudice to the interest of Egypt or modify the date of its arrival or lower its level.

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By then, the British accepted the Egyptian Note without any reservation. It has been contended that because this agreement gave the British an obligation covering all their Nile Basin territories, this Note bound Uganda too since it was under the British administration, and after independence due to the operation of the principle of state succession. 4.3.5 The 1949 and 1953 Agreements relating to the construction of the Owen Falls dam

These agreements provided for the building of the Owen Falls Dam and the contributions between the parties including the participation of Egypt. The agreement made a provision for the establishment of a permanent mission of Egypt in Uganda led by a Resident Engineer to monitor the amount of water released to Egypt. The agreed curve between Egypt and Uganda was the adopted following the 1949 Owen Falls Agreements. This agreed curve is being observed to today. The attempts to repudiate the agreements after independence were made by the independent government of Uganda. A letter of the Prime Minister of Uganda dated 12. 2. 1963 to the Secretary General of the United Nation stated as follows: In respect of all treaties validly concluded by the United Kingdom on behalf of the Uganda Protectorate, or validly applied or extended by the Government of the later, before October 9, the Government of Uganda will continue on the basis of reciprocity to apply the terms of such treaties from the time of independence, until December 31, 1963. At the expiry of this period, or of any subsequent extension of the period which may be notified in the like manner, the Government of Uganda will regard such treaties, unless they must by the application of rules of customary international law be regarded as otherwise surviving, as being terminated. The 1929 agreement does not create a permanent regime to create rights in them. The Owen Falls Dam agreements also fall short of the requirement for the continued validity. Circumstances have changed and the treaty regime cannot persist forever. Finally, the effective management of Lake Victoria Basin and the Nile River Basin and its resources will depend on close collaboration and mutual trust among the riparian States that will stem from and bonded with agreed actions such the new Lake Victoria release curve, the implementation of the Protocol for the sustainable development of Lake Victoria and the Nile Basin Cooperative Agreement that takes into consideration all the problems facing the basin today such as the receding of the lake level existing bilateral agreements on a multilateral basin, the potential use of Nile basin waters outside the Nile Basin. Lack of mutual trust, achieving one vision as opposed to several visions on one resource, and accepting water resources as a social and economic good and being party to basin agreement that is negotiated, signed and ratified or acceded to by the Lake Victoria Basin States and the Nile Basin riparian States that are further entrenched into their national water policies and laws facilitated by the Lake Victoria Basin Commission and the proposed Nile River Basin Commission. 4.3.6 The Vienna Convention on the Law of Treaties 1969.

Article 11 provides to the effect that the consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any means if so agreed. Also article 62 which provides for fundamental change of circumstances as a ground for terminating or withdraws from treaty, sub-article 3 provides that:

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If under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty. It has been accepted that Tanzania rejected the application of the 1929 agreement and similar agreements to its territory on the vital change in the political and economic circumstances. For these reason it is evident that Tanzania cleared her house from being bound by treaties that had not consented to. Therefore the move towards adopting the new Water Release Policy from Lake Victoria will have no legal implication whatsoever emanating from the deemed existing treaties. 4.2.7 The 1993 Agreement between Ethiopia and Egypt. The 1993 Agreement between Ethiopia and Egypt included a clause by which the two States agreed not to undertake any activity relating to the Nile that would harm the other, and to consult and cooperate on mutually beneficial projects on the basis of the principle of international law. Though this agreement offers very little in solving future conflicts over the use of the Nile waters between the two States it points out to two important issues: If the promise not to inflict harm is considered as a guiding principle then the agreement only benefits Egypt, as Egypt activities on the Nile cannot inflict harm on Ethiopia. If the Agreement is interpreted to mean that the consultation and cooperation on the basis of the principles of international law must be taken seriously, then Ethiopia has gained Egyptian consent to the rule of equitable allocation of the Nile waters that will supersede the priority to existing uses. 4.2.7 The Signed Nile River Basin Cooperation Framework Background The ongoing Nile River Basin negotiations started in 1997 to come up with a new Nile River Basin Agreement in the name The Nile River Basin Cooperative Framework Agreement (CFA). The present Framework applies to the use, development, protection, conservation and management of the Nile River Basin and its resources and establishes an institutional mechanism for cooperation among the Nile Basin States The Importance of the Nile River Basin States First, if the Draft Negotiated CFA is signed and enters into force it will provide an Agreement that guarantees the rights of all the Nile River Basin states to utilise the basins water resources within their territory in an equitable and reasonable manner as provided in Article 4 of the draft CFA. This right is balanced with the obligation under article 5 of the same draft CFA that restores upon the states the duty not to cause significant harm to other riparian states. Articles 4 and 5 therefore, provides for the required water security for the basin states. Consequently, the Nile Basin States should rest assured that with this Cooperative Framework coming into force, no state shall cause harm to another state in the utilisation of the water resources of the Nile River. Second, to effectively develop and use the shared water resources of the Nile River Basin there is need to have a level playing field that allows mobilization of the required resources for such development. Under the existing legal arrangements, there is no Nile River Basin Agreement that is acceptable to the Nile Basin States except for Egypt and Sudan. This is because the existing agreements were negotiated before most Nile Basin Riparian States were

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independent, and are considered lop-sided as they give veto powers Egypt and Sudan over the others. Consequently, they do not provide the required room for resource mobilization and cooperation among the States for equitable and reasonable utilization of the Nile River water resources. It is against this background that the Nile River Basin states agreed to negotiate and come up with an Agreement that is freely negotiated and provides for equitable use of the Nile River Basin water resources among the Basin countries. Outstanding Issues The Negotiation Committee has discussed and negotiated all the 45 articles presented in the Draft Nile River Basin Cooperative Framework by the Technical Experts that started assembling the Draft Cooperative Framework in 1997 and reached consensus in all the 38 articles. Only a small part of Article 14 (b) on water security to replace the Article on existing agreements remains unresolved. Article 14 states that: Having due regard for the provisions of Articles 4 and 5, Nile Basin States recognize the vital importance of water security to each of them. The States also recognize that cooperative management and development of the waters of the Nile River system will facilitate achievement of water security and benefits. Nile Basin States therefore agree, in a spirit of cooperation, (a) (b) to work together to ensure that all States achieve and sustain water security. not to significantly affect the water security of any other Nile Basin State

In effect, all the States except Egypt and Sudan agreed to this provision. Egypt and Sudan, however, want part (b) to be replaced with the following phrase: Not to adversely affect the water security and current uses and rights of any other Nile Basin States The position taken by Egypt and Sudan is not acceptable to the seven other Basin States as it is seen to entrench rights which were provided for in the existing agreements. Other riparian States are not party to the existing Agreement that guarantees existing uses which are inequitable and unreasonable. The current uses and rights that Egypt and Sudan are advancing are provided for in the 1929 and 1959 Agreements. In 1929, the Agreement was between United Kingdom and Egypt while in 1959 it was between Egypt and Sudan. The 1959 Agreement, also known as the Agreement for the Exclusive Use of the Nile River water resources, where Egypt and Sudan allocated themselves almost the entire water resources of the Nile River with Egypt taking 55.5 billion cubic metres and Sudan 18.5 billion cubic metres equal to 74 billion cubic metres to the two countries alone. This is 87% of the Nile River water resources which only leaves 13% of the river flow; the 13% forms the water reserve that is meant for environmental concerns and river maintenance. Nile Basin Initiative (NBI) The current Nile Basin Initiative was established in 1999 by the Nile Council of Ministers (Nile-COM) in charge of water Affairs that is headquartered in Entebbe, Uganda. The Main objective of the NBI was to bring the Nile Basin countries together in order to negotiate a new Nile River basin Cooperative Framework acceptable to all the riparian states. To this end, the Nile Basin states have negotiated the CFA that is now ready for signing. In addition to the negotiation of the CFA, other small tangible projects such as capacity building, water-saving irrigation, and development of water resources policies among other things have been undertaken. The Negotiations and the Final Position of the Riparian States

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From 2006-2007, the Nile-COM held discussions on the draft Cooperative Framework Agreement that was presented to them by the negotiation committee and greatly reduced the number of pending issues. In May 2007, Nile-COM concluded political discussions and agreed on all articles of the draft framework agreement, except one Article 14b on water security. In the Nile COM meeting in Kinshasa, Democratic Republic of Congo in July 2008, the Council of Ministers mandated the incoming Chairperson of the Council of Ministers (Ministers for Waters Affairs Democratic Republic of Congo) to explore new avenues that would lead to the speedy conclusion of the Framework. Based on this mandate, the Chairperson visited all the cooperating countries under NBI. The findings of his visits culminated in an extra ordinary meeting of the Council of Ministers held in Kinshasa, Democratic Republic of Congo in May 2009 where the Nile Council of Ministers, with the exception of Egypt, agreed and resolved that a Nile Basin Commission be set up and the unresolved article 14b be annexed and later be considered by an international audit committee that will fine tune article 14b. Annexing Article 14b makes the draft Cooperative Framework Agreement a clean text ready for presentation to the riparian states for signature and ratification to enable the establishment of the permanent Nile River Basin Commission. Egypt registered its reservations to this adoption. Egypts position remained that, Article 14b which relates to historical water rights and uses should be formulated with a Committee of Ministers from the Eastern Nile, the Equatorial Lakes region, Egypt and Sudan and one or two experts from international organizations to formulate an acceptable text within six months and present it to the Nile-COM members. The Seven NBI states, however, stayed their adoption by annexing Article 14b in the CFA text and recommended that the cleaned CFA text be presented to countries for signature and ratification to pave way for the establishment of a River Basin Commission. Within six months of its establishment, the Nile River Basin Commission shall institute a Committee to resolve Article 14b. The move by the seven NBI countries is a step towards establishing a Nile River Basin Commission that will become binding on the countries when the CFA document is signed, ratified in their Parliaments and deposited at the Africa Union (AU) headquarters in Addis Ababa by at least six of the Cooperating Basin Countries. Once this condition is met, a Nile River Basin Commission shall be established that shall assume all the functions currently undertaken by the NBI Secretariat. 4.3 Transboundary Water Resources Management 4.3.1 Introduction

Africa has a number of transboundary water resources that are shared and utilized by two or more States. In addition to the Nile Basin there exist other international water basins thus includes, the Lake Chad Basin, the Niger River Basin, the Senegal River Basin, the Kagera River Basin, the Gambia River Basin, the Zambezi River Basin, the Okavango River Basin, the Lake Malawi Basin, the Lake Tanganyika Basin, and the Komati River Basin among others. In an attempt to utilize and manage these shared resources in a sustainable manner as most of the existing water Agreements in Africa indicates, the African States have negotiated over fifty agreements that touch on the utilization of these international water resources. Some of these international water resources have two to three agreement negotiated by riparian States. The Nile basin itself has three bilateral agreements on a multilateral basin of ten riparian States. Such Agreements is the 1929 between Egypt and the United Kingdom on behalf of the upstream riparian territories thus includes Sudan, Uganda, Kenya, and Tanzania, the 1959 Agreements between Egypt and Sudan, and the 1993 Agreement between Egypt and Ethiopia.

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These shared water resources have been used for navigation, irrigation, fishing activities, power generation, and in general as a resource for fresh water to the African States. In the course of the development and utilization of these water resources there has been stiff competition among States and even within States themselves as the water resources become scarce and degraded.

The sustainable management of trans-boundary river systems shared by more than one country relies on the collective goodwill and collaborative efforts of all the basin states involved (Wolf, 1999; Lundqvist, 2000; Ashton, 2002). The provisions of national and international water law, as well as any international or regional watercourse management treaties and protocols ratified by the basin states, help to guide the activities of individual countries sharing a river basin (Wouters, 1999). Legal Framework Rights and Obligations of States under International Water Law International law is the body of rules, which are legally binding on states in their intercourse with each other15. These are the rules that primarily governed the relations of states, though states are not the only subjects of international law as International organizations and, to some extent, individuals may be subjects of rights conferred and duties imposed by international law. States should also distinguish between those rules of international law, which, even though they may be of universal application, do not in any particular situation give rise to rights and obligations erga omnes, and those, which do. Rights and obligations erga omnes may even be created by the actions of a limited number of states.16 States may, by and within the limits of agreement between themselves, vary or even dispense altogether with most rules of international law. There are however a few rules from which no derogation is possible as in the rules of jus cogens or peremptory17 norms of general international law as defined in Article 53 of the Vienna Convention on the Law of Treaties 1969. Sources of Rights and Obligations The concept of a "source" of a rule of law is important, since it enables rules of law to be identified and distinguished from other rules (in particular from rules de lege ferenda) and concerns the way in which the legal force of new rules of conduct is established and in which existing rules are changed. Importantly, international water law lacks the compulsory jurisdiction and enforcement that characterize domestic legal systems. Rather, it relies on its acceptance by the affected states and the opinion of the wider world community.

15 16

Jennings R., and Watts A., (eds.), Oppenheims International law, (9th ed, 2000, London, Longmans)

Reparations for Injures Case, ICJ rep (1949), p185, Namibia Case, ICJ Rep. (1971), P56, as to the extent to which states may by treaty (such as the UN Charter) give rise to obligations applicable also to third states. 17 A peremptory norm of general international law is defined as a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

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Though it is the practice of States that demonstrates which sources are acknowledged as giving rise to rules having the force of law.18 It is important to consult Articles 38 of the Statute of the International Court of Justice that is generally regarded as a complete statement of the sources of international law19. The pertinent provisions of The Statute of the International Court of Justice are as follows: Article 38. 1. The Court, whose function is to decide in accordance with international law, such disputes as are submitted to it, shall apply: international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations ; subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. Article 59. The decision of the Court has no binding force except between the parties and in respect of that particular case. 4.3.2 Treaty Law From the historical point of view, treaties are the second source of international law after they developed as the means whereby states could give to rules for their mutual conduct a greater particularity than was provided by custom. From the foregoing, treaties have to be interpreted and applied against the background of customary international law. Of a particular importance is the Charter of the United Nations, which, in addition to being a treaty embodying the constitution of that organization, has become the basic legal instrument for the international community. In case of conflict between a states obligations under the Charter and its obligations under any other international agreement, the former prevails. Article 2 (1)(a) of the Law of Treaties20 defines a treaty as an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation From the above definition it is clear that there are many designations used other than treaty to refer to an
This is often obscured by the fact that custom and treaties, which are sources depend on at least the general consent of states, are the principles and regular sources of international law, and that as the international community is at present organized, the will of states normally predominates in the creation of rules of international law. Nevertheless, the will of individual states does not play an unrestricted role.
18

Art. 38 have often been incorporated textually or by reference in the compromis of other tribunals: Simpson and Fox, International Arbitration (1959), 130 n.
19

Vienna Convention on the Law of Treaties, May 23, 1969, 115 UNTS 331, reprinted in 8 ILM 679 (1969) (entered into force 27 Jan. 1980) [hereinafter, Vienna Convention].
20

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international agreement. Such designations are: Convention, protocol, declaration, charter, Covenant, agreement, concordat, statue, act, exchange of notes, agreed minute, memorandum of agreement, modus vivendi, or any other appellation Of the designations, Treaty is the accepted generic term. The reference to other subjects of the law was designed to provide for treaties concluded by international organizations, the Holy See, and other international entities such as insurgents or as in the case of Palestine Authority, which has not been declared as a State. 4.3.3 UN Convention on the Law of Treaty Under Article 26 of the Law of Treaties21, every treaty in force is binding upon the parties to it and must be performed by them in good faith. A party may not therefore invoke the provisions of its internal law as justification for its failure to perform a treaty.22 This second rule is without prejudice to article 46.23 On territorial scope of treaties24, unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory. A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.25 A peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole and as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. The termination of a treaty or the withdrawal of a party may take place in conformity with the provisions of the treaty or at any time by consent of all the parties after consultation with the other contracting States.26 On one hand a material breach27 of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part, on the other hand a material breach of a multilateral treaty by one of the parties entitles: a) b) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: i) in the relation between themselves and the defaulting state, or ii) as between all the parties;

21

The Vienna Convention on the Law of Treaties concluded on 23 May 1969, entered into force 27 January 1980.

Article 27: Internal law and observance of treaties. Under Article 46, a State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invaliding its consent unless that violation was manifest and concluded a rule of its internal law of fundamental importance. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. 24 Article 29,
22 23 25

Article 53, of the Vienna Convention; Treaties conflicting with a peremptory norm of general international law (jus cogens)

26 27

Article 54, of the Vienna Convention Article 60, of the Vienna Convention

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c) d)

a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.

Furthermore, a material breach of a treaty, for the purposes of this article 60, consist in: a) b) a repudiation of the treaty not sanctioned by the present Convention; or the violation of a provision essential to the accomplishment of the object of the purpose of the treaty.

If a party finds that there is no any otherwise but only consider terminating, withdrawing from or suspending the operation of a treaty then it has to follow the following procedures:28 A party, which, under the provisions of the present Convention, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim.29 The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefore. If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, no party has raised any objection, the party making the notification may carry out in the manner provided in article 67 of the Law of Treaty, 1969, the measures which it has proposed. If, however, any other party has raised objection, the parties shall seek a solution through the means indicated in article 3330 of the Charter of the United Nations. Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any provisions in force binding the parties with regard to the settlement of disputes. Without prejudice to article 45, the fact that a State has not previously made the notification prescribed in paragraph (i) shall not prevent it from making such notification in answer to another party claiming performance of the treaty or alleging its violation. If, under paragraph (iii) of article 65 of the Vienna Convention, as indicated above, no solution has been reached within a period of 12 months following the date on which the objection was raised, the following procedures shall be followed: 31 any one of the parties to a dispute concerning the application or the interpretation of articles 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration;
Article 65, of the Vienna Convention Hungary notified Slovakia in the Danube case of 1997 before ICJ 30 Article 33 of the UN Charter, 1945, that states on one hand that, the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of a, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice, on the other hand, the security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means. 31 Article 66 of the Vienna Convention
28 29

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any one of the parties to a dispute concerning the application or the interpretation of any of the other articles in Part V of the Law of Treaties, 1969 may set in motion the procedure specified in the annex to the same Convention by submitting a request to that effect to the secretary-General of the United Nations. 4.3.4 Treaties on International Watercourses

Though the numbers of multilateral agreements are still few in comparison to bilateral agreements, the recognition of water basins by riparian states as a unit basin calling for the participation of all hydrographic riparian States is growing steadily resulting into the increase of multilateral agreements.32 Of the multilateral agreements there exist three that purport to lay down principles of general applicability of which two of these agreements are not contemporary significant.33 In addition there exist the 1997 UN Convention on the Non-Navigational Uses of International Watercourses that has not entered into force and contains significant provisions such as equitable and reasonable utilization that is now being recognized as international customary law and hence should be fully recognized by States. In Africa there are over 50 international watercourses agreements ratified by Africans States. In additional to bilateral and multilateral treaties are the soft laws, which are not binding on states but are good guidance to the directions States should take in the overall utilization and protection of the international watercourses. As stated above treaty laws are binding on states that are parties and hence play a key role to the legal repose to the protection of international freshwaters. 4.3.5 Customary International Law and the Contribution of the Learned Society

This is a global agreement though has not entered into force but has been recognised by ICJ as in the case of 1997 Gabcikobo-Nagomoros, between Hungary and Slovak (Danube River Water Locks Case) and contains some provisions that are already been recognised as international customary law.34 The fact that this Convention has not entered into force should therefore not be the forefront reason to dismiss it wholesale without considering its provisions and the role it is set to play in the utilization, protection and preservation of international watercourses. In 1970 the United Nation General Assembly recommended that the International Law Commission should take up the study of the law of non-navigational uses of international watercourses with a view to its progressive development

There are twenty multilateral agreements concerning international watercourses, thus excluding the Barcelona Convention, referred to in the following footnote, which deals with navigation. All but one of these (the 1923 Geneva Convention on hydraulic power were concluded since 1950 and fourteen were concluded, amended or supplemented since 1970. The rivers, lakes and basin covered, some of which are of more than one agreement, include the following: the Niger, the Lake Chad, Lake Victoria, the Zambezi River system, the Senegal river, the Kagera River Basin, the River Gambia, (all in Africa) and the Morsel River, the Rhine River, the La Plata River basin, the Amazon and the Mekong River basin.
32

The two older agreements are the Convention relating to the Development of Hydraulic power Affecting More than one State, and Protocol of Signature, Geneva, 9 December 1923, 36 L.N.T.S at 77; and the Convention and statute on the Regime of Navigable waterways of international Concern, Barcelona, 20 April 1921, 7 L.N.T.S. at 37. The former Convention has not been applied in practice, while the latter concern navigation and applies only to international rivers declared to be "navigable waterways of international concern." see, ILC 19-74 Yearbook, at58, 60. The most recent multilateral agreement of general applicability though not entered into force is the United Nations Convection on the Non-Navigational Uses of International watercourses, 21 May 1997, UN Doc. A/RES/51/229. 34 Such provisions are as Equitable and Reasonable Utilisation of international watercourses, see, article 5 of the Convention.
33

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and codification. The work of the Commission culminated in the adoption by the General Assembly of the Convention on the Law of Non-Navigational Uses of International Watercourses on May 21, 1997.35 4.3.6 Enforcement, Compliance and Dispute Resolution

Under Article 33 of the UN Charter36 that states on one hand that, the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice, on the other hand, the security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means. Article 35, states that: any member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or the General Assembly; a state which is not a member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present UN Charter and the proceedings of the General Assembly in respect of the matter brought to its attention under this Article will be subjected to provisions of Articles 1137 and 12.38 Should the parties to a dispute of the nature referred to in article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council. The Security Council too can intervene if it deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and the security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate.39 Without prejudice to the provisions of Article 33 to 37 of the UN Charter, the Security Council may, if all the parties to any dispute so request, make recommendations to the parties with a view to pacific settlement of the dispute.

4.3.7

Overall Lessons Learned and Best Practices

First, the prime principle in the field of international watercourse law is the principle of equitable and reasonable utilization as analyzed below. This principle provides for a balancing test relating to, for example, economic development considerations and considerations of non- harmful and non-wasteful use of watercourses. Further the Convention contains provisions, which contribute to the protection of, or curbing of the deterioration of, the quality of

United Nations Charter, June 26, 1945 Article 11, states that, the General Assembly may consider the general principles of co-operation in the maintenance of international peace and Security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the members or to the Security Council or to both.
36 37

Article 12, states as follows: one, while the Security council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so request, two, the Secretary General, with the consent of the Security Council, shall notify the General Assembly at each Session of any other matters relate to the maintenance of international peace and security which are being dealt with by the Security Council and similar notify the General Assembly, or the members of the United Nations if the General Assembly is not in Session, immediately the Security Council ceases to deal with such matters. 39 Article 37
38

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the water of watercourses such as: the general principle to exercise due diligence so as not to cause significant transboundary harm as contained in article 7 of the Convention, and the material obligations regarding environmental protection as contained in articles 20, and 23 of the Convention. The principle not to cause significant harm to international watercourses advances the interest of the future generations that fresh water resources will not be wasted and the water quality will be good. Article 7, paragraph 1, provides that: Watercourse States shall exercise due diligence to utilize an international watercourse in such a way as not to cause significant harm to other watercourse States.40 Article 7, proved to be the most difficult provisions during the negotiations and the Working Group ultimately made several changes to the ILC's versions of the article, but most observers believe the changes did not alter the fundamental effect of the provision. On the other hand this has to be balanced with the principle of equitable and reasonable utilization as advanced in article 5, paragraph 1, of the Convention. The result of the balancing the benefits to be gained by a particular watercourse state against the detrimental effects of such a utilization on other watercourse states may imply that a certain degree of harm will be caused legitimately to one or more water course states. This is still in line with the principle of equitable and reasonable utilization of an international watercourse that may still involve significant harm to another Watercourse State. In such circumstances, the principle of equitable and reasonable utilization remains the guiding principle in balancing the interest at stake.41 On the other hand it may be said that the duty to exercise due diligence or to take all appropriate measures to prevent, eliminate or mitigate harm, amounts to an obligation to act reasonably under the circumstances. As articulated in the UN Watercourses Convention, therefore, the "obligation not to cause significant harm"42 or to "prevent the causing of significant harm"43 is by no means an absolute one. What therefore constitute "appropriate measures" in the circumstances of specific case will depend upon a variety of factors; factors relating to conditions both in the State whose activities may result in harm and in the State that may be harmed. And the "appropriate measures" to eliminate or mitigate significant harm that has been caused are to be taken "having due regard for the provisions of article 5 and 6", and "in consultation with the affected States". The reference to articles 5 and 6 on equitable and reasonable utilization, and to consultation with the affected state, suggest that the objective of the measures taken is to arrive at a balance of the uses and benefits of the watercourses that the states involve can mutually accept as being equitable and reasonable. Other Regional International Water Agreement to be Replicated by African States in the Event of Developing New or Reviewing the Existing International Waters Agreements: 1992 Helsinki Convention on Transboundary Watercourses Under the auspices of the United Nations Economic Commission for Europe (ECE) to promote a coordinated regional approach on the protection and sustainable development use of international watercourses or transboundary waters as referred in the 1992 Helsinki Convention, intensive negotiations and cooperative action produced agreements on several policy declarations and recommendations to governments to the challenges of environmental protection and sustainable use of resources. These soft law instruments were the root of the Convention on the Protection and

1994 ILC draft Articles define significant harm as a level of harm which while it need not be trivial in nature and need not rise to level of being substantial. This means a factual standard, such as, a detrimental impact of some consequence upon, for example, public health, industry, property, agriculture or the environment, in the affected State. Further, harmful effect must be capable of being established by objective evidence, Yearbook ILC II (2) (1987) at 29. 41 Ibid. 42 As per the language of the title of art. 7 of the UN Convention 43 As per, Art. 7(1), UN Watercourses Convention
40

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Use of Transboundary Watercourses and International Lakes (Helsinki, 1992) also referred as 1992 UN ECE Helsinki Water Convention.44 The Helsinki Convention is not only important in the protection of transboundary waters draining in the common terminus as the Baltic Sea but also for the protection of such marine environment against pollution45 emanating from transboundary waters. This does not only augur well with the protection of international watercourses but also prevent the transfer of pollution to other parts of the environment. The Convention is therefore placing an increased obligation on hydrographic riparian States on the cooperation in the protection of international watercourses, monitoring46 and public information. Article 4, of the Convention specifically calls for the prevention, control, and reduction of transboundary impact, by adopting measures to ensure that the emission of pollutants is prevented, controlled and reduced at source through the application of, inter alia, low and non-waste technology, and issuance of license for the waste-water discharges by the competent national authorities. The 1999 Protocol on Water and Health to the 1992 Helsinki Convention with main objective of promoting at all appropriate levels the protection of human health and well being, both individually and collectively, within a framework of sustainable development, through improving water management, including the protection of water ecosystems, and through preventing, controlling and reducing water related disease. This protocol therefore further calls for the balancing of economic development and the protection of the environment. African Convention on the Conservation of Nature andNatural Resources 11, Algiers, 15 September 1968 Under the OAU (Now AU) auspices is the 1968 African Convention on the conservation of natural resources that states in article V section 2: " Where surface or underground water resources are shared by two or more of the Contracting States, the latter shall act in consultation, and if the need arises, set up inter-State Commissions to study and resolve problems arising from the joint use of these resources, and for the joint development and conservation thereof." In reforming itself to African Union and changing its objective from purely political agenda to economic development the new found Union should be more active in assisting its Member States in the equitable utilisation and protection of international waters in Africa by emulating the position taken by the European Union that is virtually a party to almost all international water agreements that touches on waters of Europe with a vision of enhancing the implementation of such agreements. In the last African Head of States Conference in South Africa members resolved to have the 1968 Convention reviewed to be in line with its new role. General Principles For principles to qualify as general principles of law recognized by civilized nations it must fulfil two requirements, one, a legal principle must be a general principle of law, as distinct from a legal rule of a more limited functional case, two, it must be recognized and shared by a fair number of civilized nations and probably include representation of at least the principal legal system. The general principle of law come into play only as a subsidiary law-creating agency, that is, in the absence of competing rules of international customary law or treaty law. Their existence in the background forestalls any arguments that supposed gaps in international law prevent international judicial organs from deciding on the substance of and dispute submitted to their jurisdiction.

44

The Convention was adopted on 17 March 1992 and signed the next day by twenty-five countries and the European Community in Helsinki, (entered into force on 6 October 1996, ninety days after it was ratified by sixteen countries), [hereafter, 1992 UN ECE Helsinki Water Convention]. 45 This is in line with Article 192 of the1982 United Nations Convention on the Law of the Sea (UNCLOS) 46 Article 3, of the Convention

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5.

REVIEW OF THE EXISTING CAPACITY OF NATIONAL AND LOCAL INSTITUTIONS FOR THE MANAGEMENT OF TRANSBOUNDARY WATER RESOURCES

5.1

Kenya National Water Sector Institutional Capacity

In Kenya, central government employees are recruited through the Public Service Commission while the LAs have been delegated the responsibility for hiring lower cadre staff in their respective districts. Terms and conditions of LG staff differ from central government employees and are negotiated between LGs and Labour Unions. LGs rely on their local revenue for salaries and can exercise more autonomy in decision Kenya used to have a well functioning capacity building program for Local Administrations (LAs) in the mid 1980s, which has since become ineffective due to various reasons, including financial constraints. WRM Training in Kenya is offered at the following institutes: (i) (ii) 5.2 University of Nairobi, Moi University, Jomo Kenyata University, and Egerton University, which run undergraduate and graduate level training in civil engineering, water resources and environmental management. The Kenya Water Institute, which is specifically mandated to train water sector personnel and undertake research in water related issues in collaboration with water sector agencies. Tanzania National Water Sector Institutional Capacity

The approach towards water resources management in Tanzania has been more on learning by doing. Essentially the rapid water resource assessment, water sector review and the reviewing the policy, legal and institutional framework has been made by national experts. The level of understanding of the issues and challenges, environmental, social and other physical processes has raised significantly among the various national experts, users and other stakeholders. Minimum level of input has been realized from various studies by national experts and international consultants. 5.3 Uganda National Water Sector Institutional Capacity

The responsibility for capacity building in Uganda lies with the Ministry of Public Service which provides policy guidelines for Human Resources Development. The Ministry also coordinates coordinate staff development and training in the public service. As well, the Ministry of Local Government has a specific capacity building policy that guides training in Local Governments (LGs). It has been noted that under Local Government human resources development for water resources management is not included. Water resources related training in Uganda is currently offered at the following institutions: (i) (ii) (iii) (iv) (v) Makerere University - The Civil Engineering Department Makerere Institute of Environment and Natural Resources offers graduate level training courses in Environmental Management and Wetlands Conservation. Kyambogo University offers undergraduate level training in Civil Engineering. National Meteorological Training Centre offers certificate and diploma level technical and practical training to meteorology observers, technicians and officers. Water Resources Institute is being transformed into a College of Engineering and

75

Technology on water resources engineering, water resources planning and management, water resources assessment, hydrology, groundwater hydraulics, water supply and sanitation, wastewater management, river engineering, hydraulic engineering. 5.4 Rwanda National Water Sector Institutional Capacity

Prior to the promulgation of Law No 53/2010 establishing the Rwanda Natural Resources Authority, the institutional framework lacked a coordinating mechanism and the functions related to water resources management were not fully developed. The role and responsibilities of each sector based institution in regard water resources management was not clearly articulated, leading to confusion, uncoordinated action and overlaps in implementation. Additionally, there was no institution with overall authority with capacity to regulate the use and management of water resources by other sector based institutions. Capacity gaps arose mainly from limited technical and financial resources available for water resources management. These capacity limitations are even more acute within the decentralised institutions at district level. In consequence there has been a high degree of degradation of water resources arising from activities within the various sectors. 5.5 Burundi National Water Sector Institutional Capacity

Need of reinforcing human capacity is important particularly in monitoring, water supply infrastructure development and planning for water resources management. International training is offered at Delft Hydraulic Institure (DHI) Delft in Netherlands, Georgia Institute of Technology in USA, University of Pretoria in South Africa, and several other universities in Africa, Europe, Asia, and America. These institutes have trained water resources experts from Kenya, Uganda and Tanzania. 5.6 Strength and weaknesses of institutional framework for management of water resources

LVBC has a big role to play in reshaping training to strengthen transboundary water resources management. Each Partner State should not necessarily host all types training institutions, rather than selecting some of the training institutions to offer specialized courses for the benefit of the region. 5.7 Institutional Capacity Needs to Address identified weaknesses

The core to successful water resources management lies on building the knowledge, skills and institutional base at the national, basin and local level to utilize the relatively new and multi-disciplinary tools of integrated water resources management. With the advent of the present approaches to water resources management, which emphasize integration of sectors, comprehensiveness, participation and subsidiarity, and which treat water as both a social and economic good, the requirements for knowledge and skills now go beyond the traditional skills of hydrology and engineering to include economics, law, environmental and the social sciences, and skills for water conservation and water demand management. Also, specific tools such as River Basin Modeling and Decision Support Systems, as well as strategies for communicating and engaging with communities and stakeholders, are now essential. Present capacity for transboundary water resources management is far from being adequate and effective. Hence significant capacity building needs are required at national and regional level top cater at least for the subjects indicated herein. Comprehensive assessment of the university capacities is required and a decision taken by Partner States on what and how these institutions will offer training to cater for the regions needs.

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REVIEW OF THE REGIONAL AND NATIONAL INSTITUTIONAL ARRANGEMENTS FOR THE IMPLEMENTATION OF THE PROPOSED HARMONISED POLICIES, LAWS AND REGULATIONS 6.1 Regional Institutions

These agreements and protocols have been developed in line with the core principles enshrined in International Treaties and Conventions governing management and development of transboundary water resources such as the Helsinki Rules on the Uses of the Waters of International Rivers of 1966; The United Nations Convention on the NonNavigational Uses of International Water Courses of 1997which outlines principles of International Water Law; the Dublin Principles of 1992; and the Rio Declaration on Environment and Development (1992) which promote coordinated management, development and utilization of shared water resources in accordance with the agreed principles of equitable and reasonable use, fairness, effectiveness, efficiency and sustainability on the basis of sovereign equality, mutual benefit and good faith, and absence of appreciable harmful transboundary effects downstream. Principles and policies with regard to emergencies, disasters, aggression and conflicts have also been considered. SADC Revised Protocol on Shared watercourses has provision for settlement of disputes. Matters related to confidentiality and sovereignty have also been reviewed and found to enhance the principles enshrined in the treaties, conventions, protocols and agreements. It must be recognised that institutional arrangements is the centre of international water agreements that determines the effectiveness of the agreements. The involvements of supreme organ of States as Heads of State in key decision making or setting the development policy will give the agreements the authority it requires and to some extent the political good will. Room for public participation to involve the communities that are directly concerned with utilisation of shared resources in decision making is paramount as this will make users own the decisions and be party to them. The institutional arrangements should therefore encompass the decision making organ as the Conference of Head of State that defines the Co-operation and the development policy of the Organisation and the Council of Ministers that is the highest executive organ of the organisation that elaborates the general policy for development and backed with Technical Advisory Team or Committee headed by the Commissioner or the Secretary General of the Nile Commission. All the institutions must have well defined none overlapping functions. 6.1.1 Lake Victoria Basin Commission

Lake Victoria Basin Commission (LVBC) is a specialized institution of the East African Community (EAC) that is responsible for coordinating the sustainable development agenda of the Lake Victoria Basin. The establishment of the Commission has, been sequential and basing itself on study outputs and step-wise building of the institution. The East African Community established the Lake Victoria Basin Commission formerly known as the Lake Victoria Development Programme in 2001, as a mechanism for coordinating the various interventions on the Lake and its Basin; and serving as a centre for promotion of investments and information sharing among the various stakeholders. The programme is the driving force for turning the Lake Victoria Basin into a real economic growth zone. The commission envisages a broad partnership of the local communities around the Lake, the East African Community and its Partner States as well as the development partners. The commissions activities are focusing on the following: Harmonization of policies and laws on the management of the environment in the Lake and its catchment area; Continuation of the environmental management of the Lake, including control and eradication of the water hyacinth; Management and conservation of aquatic resources, including fisheries; Economic activities in the development of fishing, industry, agriculture and tourism; and Development of infrastructure, including revamping the transport system on and around the Lake.

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The Commission further places emphasis on poverty eradication and the participation of the local communities. It is expected to make a significant contribution towards reduction of poverty by uplifting the living standards of the people of the Lake region. This is to be achieved through economic growth, investments and sustainable development practices that are cognizant of the environment. The policy and decision making organ for the Commission is the Sectoral Council which is constituted by Ministers from the Partner States while the Committee comprises of all Permanent Secretaries from the three Partner States whose Ministries' mandates relate to the Lake Victoria Basin, particularly Water, Agriculture, Transport, Communication, Energy, Tourism and Wildlife, Fisheries, Environment and Economic development. National Focal Points for the Programme in the Partner States have been set up. Focal Points are the main links between the Programme and the Partner States. They are also responsible for coordination and harmonization of the Lake Victoria Basin activities of the various Ministries, NGOs, special interest groups and other development partners in the Partner States. Current Coordination Arrangements The National Focal Point Ministries for the Lake Victoria Basin Commission provide a link between the LVBC Secretariat and Partner States. Currently, the designated Focal Point Ministries are: 1. Ministry of Water, Environment, Land Management and Urban Planning Burundi 2. Ministry of Environment and Mineral Resources Kenya 3. Ministry of Natural Resources Rwanda 4. Ministry of Water and Irrigation Tanzania 5. Ministry of Water and Environment- Uganda, Shared Vision and Strategy Framework for Victoria Basin The Shared Vision and Strategy Framework for Management and Development of the Lake Victoria Basin developed in 2003 is a strategic framework that is to guide the work of the LVBC and all its stakeholders. The Shared Vision and Strategy Framework for Management and Development of LVB focuses on 5 thematic (policy areas): a) b) c) d) e) Ecosystems, Natural Resources and Environment; Production and Income Generation; Living condition and quality of Life; Population and Demography; and Governance, Institutions and Policies.

LVBC Operational Strategy (2007-2010) EAC Development Strategy (2006 2010) requires LVBC to implement among others the Shared and Strategy Framework for Management and Development of LVB. To operationalize this, LVBC has prepared an Operational Strategy which is now approved. The Operational Strategy, which is based on the 5 thematic areas of the shared vision, has generated 9 programme Areas. However, for the period of the EAC Development Strategy, the Operational strategy is focusing on 6 priority programme areas: a) b) c) d) e) f) Governance and Institutional Development; Maritime, Safety and Security; Environment and Natural Resources Management Water Resources Management; Information and Communication; Support programme

78

The shared Vision, Mission and Operational strategy have contributed to the design of the Building Blocks for policy harmonization. The current coordination arrangement relate to water, environment, land, natura management and Urban Planning Burundi 2. Ministry of Environment and Mineral Resources Kenya 3. Ministry of Natural Resources Rwanda 4. Ministry of Water and Irrigation Tanzania 5. Ministry of Water and Environment- Uganda, 6.1.2 Lake Victoria Fisheries Organization

The Lake Victoria Fisheries Organization was formed through a Convention signed in 1994 by the East African Community Partner States of Kenya, Tanzania and Uganda as a result of the need to mange the fisheries resources of Lake Victoria in a coordinated manner. The Organisation is an institution of the EAC whose aim is to harmonise, develop and adopt conservation and management measures for the sustainable utilisation of living resources of Lake Victoria to optimise socio-economic benefits from the basin for the three Partner States. LVFO is implementing fisheries co-management on Lake Victoria, by legally empowering fisheries communities to become equal and active partners with Government in fisheries management and development. LVFO is guiding, supporting and implementing the building of the capacity of communities to participate in management and is making a real difference to their lives. 6.1.3 Proposed Mechanisms for enhancing National and Regional Institutional arrangement

The mandates and functions of water resources management are set out in national policies, as well as environment management.. The current manadate of LVBC relate to Water, Agriculture, Transport, Communication, Energy, Tourism and Wildlife, Fisheries, Environment and Economic development. National level Tanzania has a section at the Division of Water Resources that deal with transboundary water resources issues. A similar arrangement exists in Uganda. In Kenya transboundary water resources management issues are also under the Directorate of Water Resources. In Rwanda this mandate is under the Ministry of Natural Resources (MINIRENA), while in Burundi this mandate is The Ministry of Land Management, Environment and Tourism is vested with the overall responsibility of water resources management in the country. The organization for transboundary water resources management needs to be clarified. It would be proper to have a section or unit dealing with transboundary water resources management in all the Partner. This will enhance coordination and exchange of relevant data an informant between countries. Regional level The mandates of LVBC in respect of transboundary water resources management are clear. The organization structure seems to address water an environmental issues through projects and programmes rather than have a specialized unit or department to deal with coordination of natural resources, water an environmental issues on routine basins. Thus at LVBC level it is recommended to establish a unit that is responsible for coordinating transboundary issues related natural resources, water and environmental.

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7.0

REVIEW OF THE EXISTING PARTICIPATION OF COMMUNITIES AND OTHER STAKEHOLDERS IN THE MANAGEMENT OF TRANSBOUNDARY WATER RESOURCES 7.1 Regional Level

Stakeholder participation is a pre-requisite for effective and sustainable integrated water resources management and development in both national and transboundary basins. Adequate involvement and participation of stakeholders in planning, management and decision making at all levels, on issues related to water resources management and development need to be strengthened. The international principle on water and sustainable development, (Dublin Statement, UNCED and Rio Agenda 21), which is adopted by NAWAPO provide the following guiding principle: (i) Water management and development should be based on a participatory approach, involving users, planners, and policy makers. (ii) Women play central role in the use, management and protection of water resources and thus should be involved fully in the decision making process. The procedure to identify and involve both primary and secondary stakeholders in water policy formulation and implementation has been proposed to be guided by Policy Task Force. The process will encompass training of the task force, planning and holding of workshops and public gathering and recognizing and defining levels and extent of public involvement, social analysis and participation levels, provide guidelines on information products for decision makers and public consumption. It will also involve stakeholder mapping in order to identifying the stakeholder interests, roles and level of influence and importance of the different stakeholder groups in the Basin at national and transboundary level, with a detailed functional analysis. Participation of various stakeholders including communities is very important component in the implementation of various water resources management interventions. Without involvement of relevant community and other stakeholders, realization of the planned interventions is always in jeopardy. Through involvement of stakeholders ownership of the intervention is transferred to the hand of primary beneficiaries and thus ensures sustainability of the interventions. In most cases stakeholders are divided into two categories i.e. primary and secondary stakeholders. (i) primary stakeholders are both directly and indirectly affected by the natural and water resources related activities such as local communities who entirely depends their livelihoods from the water and natural resources or whose activities are directly rely on or impact the water resources Secondary stakeholders this include stakeholders who play an intermediate and facilitative role in the basin e.g. development partners, public sector agencies, NGOs and private sector

(ii)

The reviewed policies clearly indicated the need of involving local community and other stakeholders in implementation of water resource management intervention. Further the policies recognize the drawbacks which could be encountered if community and other relevant stakeholders will not be fully involved. Based on the above narration, stakeholders participation in the Lake Victoria basin can be categorized at three levels i.e. international/regional, national and local levels

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7.2

International and Regional agencies

Some of agencies worth mentioning here include funding agencies and international organizations such as SIDA, UNDP, NORAD, World Bank, EU etc. (a detailed list will be explored during the national consultative workshop). The regional agencies considered as key stakeholders in the Lake Victoria basin with regard to the use of transboundary water resources related activities include NBI/NELSAP, EAC/LVBC, LVFO, FAO, LVEMP etc. (more detailed list after the national consultative workshops). 7.3 National and Local Level

Stakeholders considered pertinent under this category include: (i) (ii) (iii) (iv) (v) (vi) (vii) 7.4 Various government ministries, departments and agencies for water, agriculture, land, fisheries, energy and mineral, hydropower, health, gender and children environment, tourism etc Semi autonomous government agencies including National Environmental Management Council, National Environmental Management Authority, water basin Boards etc. Educational and Research institutions these are more relevant in imparting necessary knowledge and skills in water resource management. These also are important in innovations and development of protocol that could facilitate proper management of water resources Local government authorities This category include district/provincial authorities, village council, village assemblies, ward development committees etc. Community Based Organizations - It includes water user associations, cultural groups 9detailed list after the national consultative workshops) Special interest groups including women groups, Youth groups, people with disabilities Local communities Potential Roles of communities and other stakeholders in implementation of the proposed policies, laws and regulations

The roles that can be played by various stakeholders in implementation of the proposed policies, laws and regulations are as follows: (i) International agencies a) Provision of financial and technical support to implementation various interventions undertaken in the basin Regional agencies a) Enhance collaboration of various stakeholders at regional level b) Solicit funds from various international agencies to implement planned interventions National agencies a) Coordinate planning, implementation and monitoring of various undertakings in the basin on behalf of their respective governments Educational and Research institutions a) Engage on capacity building of technical staff, conduct research for various innovations needed to improve water resource management as well as conducting short term courses to improve staff work performance. Local government authorities a) Provision of services related to water supply and sanitation to the local communities b) Coordinate the provision of local inputs into the government planning and decision

(ii)

(iii)

(iv)

(v)

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(vi)

making process Private sector a) Provision of consultancy services and other technical services to the public sector e.g. planning, implementation, operation and maintenance of water supply and sewerage projects Local community a) Special groups of local community to provide lobbying and advocacy to influence inclusion of the interests of their members in all development activities in their communities. b) General community to participate in planning and implementation of water resource management undertaking c) Implement various projects. Gender Mainstreaming

(vii)

7.5

Gender mainstreaming in water resource management is one of key issues which need great attention. This is due to the fact that without deliberate efforts men and women will continue to have unequal access and control over water resources. Various policies studied mention the need of enhancing gender equality. The policies also mention the need of both men and women to be active participants in the development and planning process without making women as passive participants. To ensure that both women and mane are active participants in all aspects related to management of water resources gender has been mainstreamed in water resources use and management through capacity building, institutional strengthening and affirmative action in the composition of various groups related to water resource management. Key approaches to ensuring effective gender mainstreaming in water sector interventions include: (i) (ii) (iii) Ensuring that all units and all personnel within the system have the responsibility for ensuring involvement of both men and women in all aspects of programmes and policies Incorporating gender concerns into the planning and decision making process. Gender sensitization is being promoted at all levels but above all at the decision-making levels. To remove the stereotyping and the regressive notions on womens involvement in the water sector, stakeholders are being sensitized on the different needs, opportunities and constraints of men and women participation in the water sector.

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8.0

TOWARDS HARMONISED POLICIES, LAWS AND REGULATIONS FOR TRANSBOUNDARY WATER RESOURCE MANAGEMENTS 8.1 Introduction

In recent years international consensus has built around the concept of integrated water resources management. Principle 1 of the Dublin Principles enunciated the concept of freshwater as a finite and a vulnerable resource, essential to sustain life, development and the environment. Since water sustains life, effective management of water demands a holistic approach, linking social and economic development with protection of natural ecosystems.47 In other words, the framework for the management of water resources must integrate all uses and users of water resources into a common and sustainable management framework. This concept has been popularized under the phrase integrated water resources management. The integrated nature of water resources connotes that water is an integrated resource but also that the functions served by water transcend many sectors of national life. The institutional and legislative framework for water resources management therefore must provide mechanisms for managing water in an ecologically integrated fashion. Additionally, to facilitate integration in the management of the cross-cutting functions of water, the framework must provide for these to be carried out in a manner which avoids duplication, minimizes conflict, and provides for conflict resolution. In other words, the framework must provide for integrated management of water resource functions. The integrated nature of water arises from hydrological reality. Water flows in catchments or basins, which are unified and self-contained natural units within which rainwater gathers and flows. Within a catchment all natural water constitutes one hydrological cycle, whether it is surface water or groundwater. IWRM perceives the catchment as the basic unit of water resources management. Since, in the case of shared water resources, catchments transcend boundaries, IWRM imposes an obligation on states sharing international water resources to establish frameworks for cooperation in managing such shared water resources on a catchment basis, notwithstanding the intervention of an international boundary. Regarding the functions of water, the goal and objective of IWRM is to ensure that the available water resources are managed in order to meet competing needs for water resources across sectors in an equitable, sustainable and costeffective way. Needs are defined in a holistic fashion and encompass: Human needs for domestic use and sanitation; Productive use in agriculture (irrigation), industry and commerce; Cultural functions, i.e. recreation, aesthetics and religious functions; and Ecological functions i.e. environmental needs. As noted, the concept of needs transcends beyond human needs to include the ecological functions served by water resources. Ecological needs go beyond the basic needs of flora and fauna which depend on water resources and extend to the imperative to maintain a balanced and healthy habitat capable of sustaining a biologically diverse environment in line with as articulated in the Convention of Biological Diversity of 1992. Environmental conservation therefore is an integral part of water IWRM. Effective IWRM calls for rationalization of institutional roles and mandates to avoid duplication and the potential for conflict. Additionally, it imposes an obligation on water resources managers across all sectors to implement and give effect to IWRM principles. Among the key IWRM principles are that:
Nile Basin Initiative: Shared Vision Program Water Resources Planning and Management Project, Water Policy Guidelines and Compendium of Good Practice, November 2006, Box 2 at p. 7 et seq.
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Water is a finite resource; Water is a social good as well as an economic good; Every one has a right to equitable access to water resources; In allocation and use of water resources the precautionary principle applies; The polluter shall pay for remedying damage; and There is a right of public participation in decision making.48 An overall plan is required to envisage how the transformation can be achieved and this is likely to begin with a new water policy to reflect the principles of sustainable management of water resources. To put the policy into practice is likely to require the reform of water law and water institutions. This can be a long process and needs to involve extensive consultations with affected agencies and the public. Bringing some of the principles of IWRM into a water sector policy and achieving political support may be challenging, as hard decisions have to be made. 8.2 Harmonization Principles

The Water Policy Guidelines and Compendium of Good Practice has shown than in in recent years, this pattern of policy revision, leading to widespread water sector reform, has been followed in many countries because of two major shifts in thinking. The first of these affects the role of government in general that governments should be much less directive and intrusive, relying more strongly on community and private sector ideas, initiatives, finance and capabilities. The second is specificto the water sector to move from the supply oriented approach to providing water, which was coupled in the past with neglect of the environment, to integrated water resource management (IWRM). And, hence is also noted the purpose of a water policy statement or document is to establish principles of equitable, efficient and sustainable utilisation of water resources. Moving from document to implementation, the purpose of water policy itself is to maximise the economic and social benefits of water while ensuring that these are shared in an equitable manner and that environmental sustainability is preserved. This the first fundamental principle which needs to be observed in the harmonization process. The principles upon which the laws, polices and institutional frameworks should be based are drawn from the international and regional agreements to which the two countries are parties and whose tenets they have committed themselves to. The Convention on the Law of Non Navigational Uses of International Water Courses of 1997 (not yet in force), represent general consensus among nation states about the status of international law on water resources. The principles are also enshrined in the Nile Basin Cooperative Framework and the Lake Victoria Protocol. In particular, Article 112(2)(b) of the Treaty establishing the East African Community provides for the obligation of the partner states to conserve the environment and natural resources of East Africa. Among the obligations accepted by the states is in regard to the conservation of water resources and the prevention of pollution. In particular, Article 112(2)(b)(vi) provides for the need to protect specifically Lake Victoria and its water resources. Some of the key principles include the following: (i) (ii) (iii) (iv) (v) (vi) (vii)
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Sustainable utilization. Equitable utilization as between the states sharing the watercourse. The prevention of significant harm to other watercourse states. Prior notification, exchange of information and consultation regarding planned measures. The assessment of the potential impacts of planned measures. The preservation of environmental integrity of the watercourse including prevention of pollution. Integrated management of water resources.

These principles can be found in the Water Policy Guidelines and Compendium of Good Practice fn. No 1 above.

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(viii)

Basin management and the community of interest of all states that share the watercourse in the river as a whole.

Key Legal Principles of Transboundary Water Resources Management which are included in the United Nations Convention on the Non- Navigational Uses of International Water Courses of 1997, and which are also including the Protocol for the Sustainable Development of the Lake Victoria Basin, 2003. include the following: (i) (ii) The principle of international Cooperation which refers to undertakings on international water resources which is governed by two or more states; The concept of an international watercourse being a system of surface waters and ground waters constituting by virtue of their physical relationship, a unitary whole, parts of which are situated in different states and normally flowing into a common terminus45. The principle of equitable utilisation of the water resources in shared watercourses. The obligation not to cause significant harm to co-riparian: In utilizing the resources, states are required not to cause significant harm to the interest of other states by pollution or other conduct46. The protection of present reasonable and beneficial uses of the water47: International law favours the protection of present beneficial uses of shared waters and discourages wasteful uses. Notification and information sharing: The 1997 Convention and general international law require states to cooperate and share information regarding the development of shared water resources. The principle of prior notification requires that each of the riparian States should notify other basin States of planned measures or planned activities within its territory that may have adverse effects upon those other States48. The principle of regular exchange of data and information: essential for confidence building, and basis upon which states can build a reliable and comprehensive knowledge base. The principle of the prevention, minimisation and control of pollution of watercourses so as to minimize adverse effects on freshwater resources and their ecosystems, including fish and other aquatic species, and on human health50. The principle of the protection and preservation of the ecosystems of international watercourses: whereby ecosystems are treated as units, all of whose components are necessary to their proper functioning, and that they be protected and preserved. The principle of community of interest in an international watercourse: whereby all States sharing an international watercourse system have an interest in the unitary whole of the system. The principle that water is a social and economic good (The Dublin and Copenhagen Principles 1991)

(iii) (iv) (v) (vi)

(vii) (viii) (ix) (x) (xi)

Other emerging principles are: (i) The principle of environmental impact assessment of any planned activity (Refer Protocol on Lake Victoria to the East African Community Treaty, the proposed FAO promoted Convention on Lake Malawi/Niassa/Nyasa, the Draft Cooperative Framework for the Nile Basin, the 1992 ECE Helsinki Convention Article 3(1)(h)and the 1987 UNEP Guidelines on Environmental Impact Assessments). The principle of environmental audits of existing projects and economic activities in a given Basin (Protocol on Lake Victoria to the East African Community Treaty, the proposed FAO promoted Convention on Lake Malawi/Niassa/Nyasa, the Draft Cooperative Framework for the Nile Basin, UNEP/ Industry and Environment: Guidelines on Environmental Audits); The precautionary principle refers to each riparian State to take the necessary measures to prevent environmental degradation from threats of serious or irreversible harm to the environment, despite a lack of full scientific certainty regarding the nature and extent of the threat;

(ii)

(iii)

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(iv) (v) (vi) (vii) (viii)

The polluter pays principle refers to the person that causes the pollution, shall as far as possible bear any costs associated; The principle of pollution prevention at source whereby pollution is prevented at source, rather than cleaned up after being emitted; The principle of public participation, whereby decisions about a project or policy take into account the views of the stakeholders; The principle of sustainable development requires that present uses of resources must take into account satisfying the needs of this generation without denying the rights of future generations to use the same resources. Permanent sovereignty over natural resources: the permanent sovereignty of each people over their natural resources as enshrined in Article 2 of the United Nations Covenant on Civiland Political Rights of 1966.

The process of harmonization envisaged herein recognize the similarities and differences as contained in national policies, laws and regulations which take account of, and give effect to, that countrys particular circumstances. What will be provided are the frameworks which minimize the differences between national policies and to provide for regional framework. This important because implementation is at national level. Effective harmonization depends on the existence of a cooperative framework which are in place including the EAC Treaty and Protocol for Sustainable Management and Development of the Lake Victoria basin as well as Nile Cooperative Framework. 8.3 Building Blocks for Harmonized Policies, Laws and Regulations 8.3.1 Building Block 1: Cooperation in water resources management and development

(i)

Economic integration from the use of transboundary water resources

It is well recognize that the Lake Victoria Bain basin has extraordinary natural endowments, yet the basin is characterised by extreme poverty, conflicts, famine and disease in some of the areas. However, there exists unparallel opportunity for development that could enhance food and energy security, industrial development, environmental conservation, transportation and other development activities. Kenya, Uganda and Tanzania signed a treaty for the formation of East Africa Community (EAC), in November 1999, and committed itself to a partnership based sustainable development approach that recognizes Lake Victoria as an economic growth zone. Rwanda and Burundi later acceded to treaty in 2005. The Lake Victoria Basin Commission (LVBC) was created by the East Africa Community member States as the vehicle through which collaboration in sustainable development shall be pursued. All the EAC Partner States endeavour to foster cooperation in the sustainable management and equitable utilization of shared water resources. As evidenced by the signing of the Protocol for Sustainable Management and Development of Lake Victoria Basin. For example Tanzania and Uganda has been cooperating on Kikagati on Kagera River, but a clear framework on the issue of benefit sharing is required. There are similar ongoing or planned projects in the Kagera, Mara and SioMalaba-Malakisi, etc which will buided by the regional policy. Because of the transboundary character of the resource for which Tanzania and Uganda on the Kagera, Kenya and Uganda on the Sio-Malaba-Malikisi and Kenya and Tanzania on the Mara have joint projects through the NELSAP (NBI) there is the imperative to have in place a regional policy to guide such collaborations. When Lake Victoria level went down fisheries were affected, urban water supplies and harbor operations were affected as well as hydro power generation was also affected and this in turn affected the economy of the whole region.

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It is also important to take into account that issues of communication, advocacy as critical to achieving appropriate cooperation. There is need for people to understand the issues involved and the associated positive and negative impacts in order to cooperate, enhance proper communication and awareness is very important to inform the people, developing and disseminating popular versions of Policies, Vision, guidelines, and Laws to enhance effective cooperation. In order to enforce policies and laws it is critical to enlist the good will of people and the political branch. Proposed Policy Direction Recognizing the imperative to achieve optimal production and benefits from the use of transboundary water resources and avoid any potential conflicts, the following issues need consideration to enhance cooperation and hence economic integration: Water resources shall be developed and managed in an integrated manner to contribute to regional and national economic integration and development on the basis of balance, equity and mutual benefit for all riparian countries. In implementing this policy the reference point shall be the Shared Vision and the Protocol for Sustainable management and Development of the Lake Victoria Basin. Partner States shall endeavour to promote and exploit opportunities for joint water resources development in shared watercourses to maximize benefits from the use of common transboundary water resources and consolidate regional cooperation. Promote awareness of the people to understand the issues involved and the associated positive and negative impacts in order to cooperate. (ii) Water resources and inter-sectoral cooperation

The National Water Policy of Uganda water is clear about how it envisages cooperation in the context of transboundary water resources. The policy recognizes that by virtue of her location, both as upper and lower riparian, Ugandan interests lie within securing her euitable share of the water resources of the basin, ensure good water quality in the water bodies within the national boundaries is maintained for sustainable use, and promote regional cooperation for optimal resource use. Its policy principles adhere to the various currently acceptable principles of international law on the use of shared water resources. Thus the policy clearly stipulates need for a coordination strategy regarding international water resources issues, in particular related to utilization of the Nile waters and safe guarding of the water quality of the lakes; Victoria, Kyoga, Albert, George and Edward; which is recognized as a national level function. Tanzanias National Water Policy recognizes that the country is riparian to trans-boundary water bodies with neighbouring countries, and that large abstractions and use of the trans- boundary water resources requires understanding and agreement among the riparian states. It further recognizes that the each of the trans-boundary water bodies exhibits unique characteristics, and a complex range of water management challenges which need effective and joint management strategies to address them. It calls for identification of national priorities related to the management of trans-boundary water will be carried out in collaboration different national institutions, effective use of trans- boundary water resources to meet different social and economic demands based on the principle of equity, right and rationality, need for framework for the management and utilization of trans-boundary based on the need for fostering regional cooperation, as well as technical collaboration on areas of research, data collection and information exchange will be promoted. Rwandas National Water Policy is in final stages of approval. The policy follows generally accepted principles of international law. The policy recognizes that, Rwanda, as a riparian country within Nile and Congo River basins has a reciprocal obligation to utilise its shared water resources sustainably and equitably. It recognizes the imperative to cooperate with its neighbours in the management of the shared water resources, and avoid actions which can degrade the shared water resources and cause significant harm to other riparian States. It emphasizes need for neighbours must equally respect and give effect to Rwandas right to utilise the shared water resources

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for its development needs. The principles of shared water resources management have been taken on board in key regional instruments to which Rwanda subscribes, including the East African Community Treaty and its Protocol for the Sustainable Management of Lake Victoria and its Basin, 2003, and the evolving Nile Basin Cooperative Framework. Thus, the National water resources management policy must accordingly provide a framework for the sustainable and equitable management of Rwandas shared water resources on the basis of reciprocity with its neighbours in the shared basins, and give effect to the growing inter-dependence of the countries in the region. The policy further notes that in the utilization of shared water resources, Countries should strive to maximize and equitably share the benefits. The Government of Rwanda policy aims at fostering cooperation in the sustainable management and equitable utilization of shared water resources. The Rwanda policy foster co-operation in the sustainable management and equitable utilization of shared water resources. The Kenya Government developed the Sessional Paper No. 1 of 1999 on National Water Policy on Water Resources Management and Development, which sets out the policy direction in the management and development of the water resources in the country. The water Policy does not have specific provisions for transboundary water resources management and therefore does not give policy direction on the management of shared water resources. In order to address this policy gap, government, in 2002, embarked on the process of preparing a specific policy on the utilization of shared water resources (specifically, Lake Victoria water resources). To this effect a draft policy has been prepared and is still going through the review process by the relevant authorities. Kenya is a members of the East African Community (EAC) who jointly prepared the East African Cooperation Development Strategy (1997 2000) in which the Lake Victoria basin was designated as a regional economic growth zone to be developed through a coordinated implementation process by the Partner States (EAC, 1997a). Subsequently, the EAC countries signed a Protocol for the Sustainable Development of the Lake Victoria Basin (2003) and established a Lake Victoria Basin Commission. It follows therefore that key principles enshrined in these documents are what each of the partner states will stand for. According to the Treaty, the Partner States agreed to cooperate in the following areas that relate to utilization of water resources: Agriculture and food security Environment and natural resources management Tourism and wildlife management Health, social and cultural activities The water resources management and development are covered under the area of environment and natural resources management. Proposed Policy Direction Inter-sectoral cooperation within the framework of integrated water resources management is the key to effective and efficient utilization of transboundary water resources. All national policies promote inter-sectoral cooperation, which should be compatible to regional policy. Promote proper communication /Awareness as an important tool to inform the people to understand issues in order to cooperate and obtain broad-based suport, and generation of broad-based partnerships. Regional and national institutions shall ensure the collaboration of all affected sectors in the management and development of water resources to achieve the goals of regional integration, upholding the principle of equitable utilization, aiming at poverty eradication enhancing economic growth and sustainability.

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(iii)

Communication and collaboration

All the Partner states water policies recognize the imperative to communicate and collaborate on issues related to transboundry water resources. In Kenya a critical review of the implication of other laws, regulations and policies (environment, mining, energy, forest etc) on water resources tends to confirm the need for coordinated management of water. In Uganda the policy requires that all developers and providers of water services are required to provide data and information pertaining to their activities. The Directorate of Water Development collects, collates, analyzes, archives and disseminates this information for public use and management of water resources. Tanzanias National Water Policy recognizes that water resources management is a multi-sectoral activity that requires an effective collaboration and coordination mechanism among sectors at all levels. A communication strategy and plan is in place and under implementation at National and Basin level. The Rwanda policy sites lack water data and information exchange mechanisms between regional river basin riparian countries as one of the main challenges. The Nile Basin Initiative - Water Policy Guidelines and Compendium of Good Practice has provided that the key to successful social change lies in good communication between water sector professionals and civil society stakeholders and in ensuring a broad base of participation, particularly in respect of the Proposed Policy Direction Recognizing that issues of communication, collaboration and advocacy is among the critical components to ensure optimal benefits to the use of transboundary water resources. The following policy statements are proposed: Establish and institutionalize of two way communications between and among sectors, national and regional institutions and transboundary water resources management. Relevant Basins or Catchments should be strangthend to play day-to-day agreed activities. Develop and implementation of data and information sharing protocols. Promote publication dissemination of data and information to general public on the state of water resources and its use on regular basis. Develop regional and implementation of research findings. (iv) Conflict management mechanisms

The lake basin has a resource-defined ecosystem where conflict occurs between stakeholders with specific interests and inter-relationships as well as with restricted perceptions of the resource situation which if not attended to, may develop into future social and political conflict and unrest. In other cases conflicts have arisen from lack of government coordination, coordinated intervention and law enforcement, and could escalate into conflicts between economic actors, sectors and levels of government. For example, fishing in the lake, increased competition among fishers and fish processing agents give rise to conflict over national control of lake waters. Preliminary discussion in Burundi indicated that joint conflict management mechanism in the forthcoming National Policy is necessary tool to enhance cooperation. Uganda Policy has underscored that potential conflicts are developing between upstream and downstream users. Locally, it is mentioned, that upstream riparian may use the water in ways, which, for example, make water quality unsuitable for the downstream use. In Kenya the management of water affairs were unsuccessful due to institutional weaknesses including over-centralized decisionmaking processes, an inappropriate and run-down monitoring network, inadequate water resources database and documentation, discontinuous assessment programs, uncoordinated source development, inoperative water rights, absence of special courts to arbitrate water use conflicts, and a generally weak institutional setup; all these affected the sectors performance. In Tanzania the former approach was sector oriented not fully recognizing the multisectoral linkages, and was based on regional development as the basis for planning, did not focus on institutional and capacity and management considerations, was oriented towards the development of the water resources and not

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on the protection or management of the water resources, was based on regulation as a primary instrument for implementing the water policy. Many of the conflicts over water use which exist today are a result of this developmental approach. The new approach has changed this situation to a great extent. Conflicts are mediated by users themselves through their Water User Associations, Catchment Committees which are in the making, and Basin Water Boards. Rwanda Water Policy notes where there is a potential adverse impact arising from planned measures, States should negotiate in good faith to resolve any issues arising from the measure, and avoid conflict. Proposed Policy Direction Lake Victoria Basin falls under the Protocol for the Sustainable Development of the Lake Victoria Basin and has principles governing transboundary water resources management. To ensure conflict management mechanisms with the framework of this protocol the following policy measures may apply: Promotion of transparent system of sharing information, costs and benefits that aim at building confidence and trust among the partner States. Establish mechanisms to resolve the existing and future conflicts among the various entities mandated to manage components of water resources. Promote incentive mechanisms for resolving water resource use conflicts. Provide regional stakeholder forum with diverse constituencies to share ideas and generate consensus on their priorities and interests to build confidence and trust. Uphold the principle of international cooperation on matters related to the utilization of transboundary water resources in order to mitigate conflicts, which may include the obligation not to cause significant harm to co-riparian, and notification and information sharing. (v) Benefit sharing and equity consideration

UN Watercourses Convention Article 8(1) provides watercourse States shall cooperate on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection of an international watercourse Benefit sharing in respect of transboundary water resources, though mentioned in some of the national policies, is not institutionalized in the transboundary context. Hence there lacks management tools for assessment, negotiation and sharing of benefits. It is important to note that benefits sharing can only work if there is equitable and reasonable allocation of shared water resources which is balanced with the duty of states not to cause significant harm to other riparian sates in the utilization of the resources. Therefore benefit sharing should go hand in hand with establishment of mechanisms for equitable allocation of the shared water resources. Proposed Policy Direction Promote equitable allocations of transboundary water resources that aim at enhancing sharing of benefits. Promote dialogues at the different levels from trasnboundary, national and local level; to ensure sustained progress and achievement of goals and objectives set out in the EAC Treaty and Protocol for sustainable management and Development of the Lake Victoria Basin. There is need to develop and promotemanagement tools for assessment, negotiation and sharing of benefits. Promote mechanisms for increasing awareness of for regional stakeholders on benefits and sharing of benefits. 8.3.2 Building Block 2: Sustainable water resources development and management

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(i)

Water for Socio-Economic Development (water for food security, energy security, industrial security, water supply, sanitation and hygiene, etc)

The NAWAPO prescribes priority water uses: In planning water uses, water for basic human needs in adequate quantity and acceptable quality will receive highest priority. Water for the environment to protect the eco-systems that underpin our water resources, now and in the future will attain second priority and will be reserved. Other uses will be subject to social and economic criteria, which will be reviewed from time to time. In implementing this policy two important capacities are needed. Firstly, is how to determine the water needs for the environment (environmental flow), but also processes to determine water needs for the different other competing uses including consideration of environmental requirements in water allocation and development scenarios, decision support systems to assist in making proper choices, and facilitating stakeholder dialogue to arrive at the best choices. Secondly, is the streamlining of environmental water requirements in the water allocation, permitting system, planning and designing and decision making. Additionally, the water infrastructure that are being approved should be able to mimic natural events such floods and droughts. A recent example is when L. Victoria level went down fisheries were affected, urban W/supply was affected as well as harbor operations. Hydropower generation was also affected. Uganda they promote IWRM and planning but notes that what powers is there to force sectors to abide with the plans. Thus participation of the sectors in the whole process of preparation of the plans is critical. The current preparation of water master plan will allocate water to the different sectors. Climate Change is being taken into account (mitigation and adaptation including ecosystem protection). In Rwanda a strategy being finalized, noted that there is need to put more focus on natural resources which depend on water and have relationship with water. Discussion in Rwanda indicated that they do not see clear cooperation in issues related to natural resources management and use, as compared to trade, security, and movement of people have advanced in terms of cooperation. Burundis opinion on IWRM is that there is no framework although there is an IWRM planning currently ongoing, thus a framework is needed on trans boundary natural resources management. They also note on tools to be able to know water availability and water productivity. The use of appropriate software/tools for planning sustainable decision support system to avoid conflicts and optimize facility is required. In term of planning there is need to put programmes related rainwater harvesting, dry season, climate variability which cut across land use and water resource use activities. Collaboration can produce complementarily for all types of commodities for the benefit of Partner States. Under the protocol for Sustainable development of Lake Victoria Basin partner States have designated Lake Victoria as an economic growth zone. The need for increased investment in the field of energy, transport, communication, infrastructure, tourism, agriculture, fisheries, livestock, forestry, mining and other areas of social and economic Endeavour to spur development and to eradicate poverty in the in the Lake Victoria Basin has been stated; and this can only be achieved through inter-sectoral cooperation nationally and regionally. One of the objectives of the protocol is the commitment to ensure the promotion of the sustainable utilisation of the natural resources of the Partner States and the taking of measures that would effectively protect the natural environment of the Partner States [art. 5(3)(c)]. In order to achieve the objectives spelled out, the Treaty sets out principles on which the water resources shall be managed, utilised and developed. In this regard the key principles as provided in Article 6 are: Equitable distribution of benefits Co-operation in mutual benefits Mutual trust, political will and sovereign equality. The Shared Vision for Lake Victoria Basin underscores that the need for harmonization, coordination and enforcement of policies and legislative frameworks to support the conservation and management of the ecosystems, natural resources and environment and encouraging collaboration with and promotion of participation and investment by the public, CSOs and private sectors.

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Proposed Policy Direction Partner states shall consider water as both (i) an economic good, which supports cross-sectoral regional economic integration and development, and shall be conserved, developed and managed to provide economic benefits, and (ii) a social good that is essential to human survival and social wellbeing and for poverty reduction. Partner states shall consider, when allocating water between states, economic sectors and users shall economic benefits that is balanced with social obligation and environmental requirements and the obligation to protect an conserve the water resources. In managing and developing the water resources of the Lake Victoria Basin, Partners States shall consider the concept of comparative advantage in water availability as a means of promoting intraregional trade and balancing national water budgets in a sustainable manner for the benefit of the regions population. When allocating water for socio-economic needs Partner States will uphold the following policies: Water Supply, sanitation and hygiene: Ensuring sustainable access to safe water supply for basic human needs in adequate quantity and quality. Water for basic human needs receives highest priority over any other allocations, water allocation for productive activities to poor and marginalised communities in rural and peri-urban to alleviate poverty and ensure balanced development, and facilitation of the provision of sustainable access to adequate sanitation for all rural, peri-urban and urban households which is integrated into the provision of water supply services. Public awareness, as well as hygiene education and practice should be integrated in the provision, operation and maintenance of water and sanitation facilities. Water for Food Security: Partner States shall promote the attainment of regional food security rather by developing those areas which have comparative advantage for rain-fed and irrigated (both small and large scale) agriculture through optimizing the use of water resources through integrated water resources management framework. This should also aim to increase production of food and cash crops in rural areas for sustainable livelihoods and poverty reduction through promotion of affordable and sustainable techniques for small-scale irrigation. While promoting the use of water for food and cash crop production, Partner States will promote measures to increase water use efficiency, and provide economic incentives for efficient use of water. Water for livestock watering and for maintenance of grazing land: shall receive adequate consideration in water resources allocations at regional, national and local levels. Water for Energy Production: Partner states will collaborate in optimizing the potential for hydroelectricity generation with a view of providing cheaper and more environmentally friendly sources of electrical energy for household and industrial uses. This will include development of both large scale, and small-scale hydropower to enhance rural electrification. Water for Industrial Production: Water for industrial purposes will be allocated considering its economic value. Water for Sports and Recreation: Water for sports and recreation will be accorded due consideration when allocating water for the various competing demands.

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(ii)

Development and management of water resources by river basin approach

In Kenya the water sector has been undergoing thorough reforms since 1992 with the preparation of the National Water Master Plan, the formulation of the National Water Policy on Water Resources Management and Development in 1999 and the promulgation of the Water Act 2002. The four principles adopted by this policy include the following: Tanzanias National Water Policy advocates integrated approach to water resources management, which is participatory, multi-sectoral, multi-disciplinary, and based on River Basins, which recognizes that water is a scarce resources and treats it as such, integrates the linkage between land use and water use, water quality and quantity, and recognizes the important role ecosystems play in the sustainable development and management of water resources. These Basins are: Pangani River Basin Pangani, Rufiji River Basin, Lake Victoria Basin, Wami/Ruvu River Basin, Lake Nyasa Basin, Lake Rukwa Basin, Internal Drainage Basin to Lakes Eyasi, Manyara, Natron and Bubu Complex Lake Tanganyika Basin, and Ruvuma River and Southern Coast Basin. Kenya is managing its water resources by 6 catchment area approach which is similar to Tanzanias water basins. These catchment areas are: Lake Victoria South Catchment Area, Lake Victoria North Catchment Area, Rift Valley Catchment Area, Athi River Catchment Area, Tana Water Catchment Area, Ewaso Ngiro North Catchment Area. Provision has been made in the present policy of Uganda to create in future catchment level institutions to deal with water resources management in the respective catchment areas, because in the present context, it has not been found necessary to establish catchment level institutions. Meanwhile WRM is central Govt function. However, according WRM principle, there will be decentralization- lower level - Catchment/Zone which are in the process of being created. The Zones are considered important Units of ManagementUganda will send officials to zones starting from July 2011. Within each zone There will be catchments or sub-zones where stakeholder will participate at that level. Uganda water Policy is being reviewed but there no major changes are expected. In Rwanda, the catchment-based approach is widely recognized as essential to dealing comprehensively with water resources management issues, based on the obvious community of interest for users living within such a geographical area. Indeed water use has impact primarily on users within the same catchment, and viceversa; including environmental uses. In this connection, water resources institutional and management arrangements ought to be set up at catchment or basin scale. However, in the Rwanda context with the drive of achieving efficiency, taking advantage of the established administrative set-up, , water resources management processes will be effected within local government administrative entities in terms of planning, programme implementation and water users organizations. The operationalisation of the principle of catchment based water resources management will be further elaborated in the implementation strategy of this policy. Burundi is in the process of preparing National Water Policy and hence catchment management approach is yet to be defined and documented.

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Proposed Policy Direction In shared water resources Partner States will plan, develop and manage water resources by adopting a river basin or watercourse approach. Subsequently, Partner States jointly will prepare and implement integrated river basin management and development plans with full involvement of affected stakeholders, promote conjunctive use of surface and groundwater resources. The plans so jointly developed will be the basis for negotiations of water allocations between Partner States based on agreed based on equitable and reasonable mechanisms, with consideration of the position of the Lake Victoria Basin within the wider Nile so as to avoid undue conflicts. Partner states will ensure that shared water resources and the water uses upon them will be regulated through as a system of water rights/permits applicable at national level as stipulated in the agreed harmonized Regulations . (iii) Integrated Water Resources Planning approach

Water resources is cross cutting in nature across political boundaries and sectors. It imposes strong challenges and opportunities for cooperation. All the Partner States underscore the importance of integrated water resources planning. This consider the integrated use of surface and ground water resources, the reuse of water, proper pollution management and the provision of environmental requirements. From discussion Burundi Water Policy anticipates inclusion of IWRM as a main planning principle as guided by the Lake Victoria Bain Protocol. Rwanda Water Policy notes available water resources of Rwanda will be allocated on the basis of comprehensive and integrated plans and optimum allocation principles that incorporate efficiency of use, equity of access and sustainability of the resource. Proposed Policy Direction Transboundary water resources planning will be done on the basis of water basins using an integrated multi-sectoral approach and cross-cutting nature of the resource, involving stakeholders and which will consider requirements for bio-diversity and human health. Partner States shall promote joint planning and implementation of development projects and programmes within their within their shared watercourses in transparent manner and notify each other and/or engage other watercourse States through agreed dialogue mechanisms, where such other water course States are not proponents of the projects. (iv) Water conservation and demand management

In all the Partner States water has been considered a social good and Governments took the responsibility for providing access to services. Present stresses and scarcity call for the adoption of measures to improve efficiencies in water use aimed at making more water available to meet demands. The situation will gradually lead to the need for measures, such as recycling and artificial recharge, which may provide a local drought-proof source of water. Also, across all sectors, fees for using water have been very low and, thus, there has been little incentive for using the resource efficiently or for conserving it, which has resulted in wasteful and inefficient use. All countries have instituted charges for using raw water as a measure to increase budget allocated to WRM. Tanzanias fee structure also aims at making the fees as an incentive for efficient use of water. Proposed Policy Direction Partner States will adopt a Demand Responsive Approach to water resources management will be introduced

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through the use of demand management approaches together with water conservation measures as a fundamental requirement for integrated planning and management of transboundary water resources. (v) Development of dams

Tanzania and Kenyas policy and legal frameworks have provisions for development of dams and dam safety. Rwanda, Uganda and Burundi polices do not show similar provisions. Tanzanias policy requires that development of large water schemes including construction of dams, large rainfall harvesting schemes, river diversion works, and inter-basin water transfers must meet objectives of water resources management, and will be subject to a permit and an Environmental Impact Assessment (EIA). Provisions for dam safety are also provided in Chapter X of the Water Resources Management Act 2009. This policy an legal frame needs to be in harmony within the riparian states as large infrastructure will certainly have significant implications for water management in the downstream and may be source of major conflicts. Proposed Policy Direction Promote integrated planning, development and management of dams in order to optimise the use of the water resources, maximise derived benefits (such as hydropower, tourism, flood control, irrigation, water supply) and jointly address both positive and negative externalities. Promote the participation of all key stakeholders in decision-making in the process of dam development. Partner states will jointly prepare and negotiate on operating rules for dams on shared watercourses with a view of to optimise the socio-economic and environmental benefits in an equitable manner. (vi) Water allocation and water permits authorization

Regulation of water use in respect of transboundary water resources is important as it serves as the basis for planning and optimising the utilisation of water resources. One of the most fundamental areas to be clarified in a national water policy is how water resources are to be allocated in order to achieve the objectives of equity, efficiency and sustainability. This is generally achieved through the granting of rights to abstract and use water from public water sources, and to discharge wastewater or effluent (of a defined quality) back into public water sources. In Tanzania NAWPO 2002 replaces the term water right to water use permit. Previously water rights were issued in perpetuity. The new policy introduces water use permits to be issued for a determined beneficial use within specified duration. If the the system of Water Rights has to be an effective water allocation tool, then the necessity that water use has the widest possible coverage by formally registered Water Rights can not be over emphasized. A system of permits, therefore, is necessary to ensure that allocations can be monitored and regulated. Kenya, Uganda and Tanzania water polices and the associated water laws have included regulatory mechanisms for allocating water and monitoring its use. Appropriate and transparent harmonized regulatory mechanisms needs to be developed and negotiated between the Partner States for implementation at national level considering the following allocation principles: Water allocation and permitting to take account of the current priorities and future investment intentions identified in basin/catchment IWRM plans. Maximisation of socio-economic benefits while ensuring environmental sustainability. Equitable distribution of the available water resources. Proposed Policy Direction Promote equal and fair procedures when allocating water so that all social and economic activities are able

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to maximize their capacities. The objective being to realize efficient water uses and conservation while improving productivity in all socio-economic activities and maintenance of the environment. Priority uses on transboundary water courses will be water for basic human needs and for sustaining the environment will attain highest priority, followed by water to meet social-economic needs which will be subject to agreed criteria and time to time revisions. Streamlining of environmental water requirements in the water allocation, permitting system, planning and designing and decision making.

8.3.3 (i)

Building Block 3: Water for environment and ecosystem sustainability

Water allocation for the environment/sustaining aquatic ecosystems

Sustainability of the environment as well as the ecosystem depends so much on how water is made available to it. In Tanzania the NAWAPO recognize the need for allocating water resources to sustaining the environment and the aquatic ecosystem (section 4.1.2). In Uganda this is well elaborated under sections 4.3.3 (ii); 6.3 (i); 7.4(ii); 8.1(ii) and 8.2. Rwanda water Policy gives the provision of the above scenario under section 4.3.2; 4.2.1(b) and 4.3.4. In addition even the sector policies recognize the need of allocating water for the environment. In Uganda the national fisheries policy under policy statement 8, policy objective 3; the national environmental management policy under section 3.4 (principle 5) and strategy vii, 3.5 (principle 5) and the national policy for the conservation and management of wetland resources under sections 5.1(first goal), 5.2 (goal 2), 7.1(i) and 7.2(i). In Tanzania the sector policies that address this issue include the national fisheries policy sections 3.2, 3.3.6 and 3.3.7; national environmental policy section 48(a-c), national forest policy section 3.0, the national agriculture and livestock policy sections 3.2(b),(f) and 4(a-c). In Rwanda the sector policies which have provisions for water allocation for the environment and aquatic ecosystems include national environmental policy section 5.2.2 (a), 5.2.2 (b)(i) and 5.3.1(b)(vii); national water supply and sanitation services section 4.10.1 para 2. For Kenya allocation of water for environment and aquatic ecosystem is provided for. The national fisheries policy of Uganda covers this issue under section 8.2.1 Environment and Ecosystem is a big concern in the region. Environmental Flow Assessment (EFA) is important EFA but there is need to look at vis a vis the cost involved. LVBC can bring countries to look at this process. On On Climate Change each of the Partner States have been doing alone. LVBC can bring the countries to do it as a region, especially looking at adaptation issues and on assessing the impact of climate Change on WRM and on water using sectors. Uganda has established environment Force to patrol the environment (nearly 600 people are employed to do that). Cleaner production is promoted, as well as building partnership with other Agencies, Judges, police. Compliance assistance although they have polluted but are assisted to address the pollution (tax holiday). LVBC can have the role of following up compliance, enforcement. Necessary to harmonize regulations pertaining to transboundary WR so that we do and plan together an example is on water hyacinth. In Lake Victoria with all the efforts the water hyacinth is still there. We thus need harmonized laws, regulations and policies. In Rwanda there is a strategy for irrigation to address problems of drought and climate Change. There is now irrigation water plan and a process is ongoing to establish climate change policy. It was also note that a process is ongoing at regional level to have climate change policies. Rwanda is land use consolidating, so people are promoted to use machines, and have policies on fertilizer, seeds, and agrochemical policies which come under land consolidation. On food security master plan and climate change must be addressed at regional level not country level. This will offset in balance at the EAC level there will food balance sheet where deficits and surplus will be known Country wide. Another issue of high significance is that of land degradation through erosion resulting in sedimentation which is finally deposited at the lake Victoria plus Loss of fertile agricultural land. It was noted that pressure on the land for some countries (like Rwanda) is 300 people per

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hactor. For population of Rwanda it is 1 person for 100sqm. Around 80% of population are farmers. In Burundi there is regulation that each project must comply to EIA. In terms of harmonization Burundi has no policy on land and water. The President has signed a decree on EIA but there is no policy on Strategic Environmental Assessment. At national level there is authorization process, which must be followed. For industries there is a code which they has to be followed. Cleaner production is promoted to improve the management of waste water which has implication on water pollution. The need to differentiate the different ecosystem was emphasized during the preliminary consultation. It was noted that environmental issues need to be addressed comprehensively including issues related to soil erosion, loss of fertility, water quality, land degradation, etc. Alternative energy source such as bio-gas and bio energy will minimize dependence on natural forests. Agro ecological approach need to be promoted as it will result in getting firewood while at the same time improve soil fertility, and get organic manure. Introduction and promoting terraces on slope will conserve soil water and improves water infiltration. Thus there is need for good research on these aspects. Special consideration is needed on Wetlands act as they act as sponges - keep waste in wet season and release in dry season; improve water cycle, land productivity provide building material and tradition medicine. They perform important hydrological fraction, ecological, sociological and environment function. In dry season people move from u/s area to cultivate in wetland, Therefore you need wetland management to offset poverty. All countries need policy, strategy and wetland action plan as part of environment management. For transboundry wetlands Partner States needs one vision one policy and a good transboundry strategy and action plan. Burundi calls for rational use of wetlands and watershed management, and that research is needed to understand and to maintain native species. Based on the above review in order to ensure proper allocation of water for the environment and aquatic ecosystem the following are needed (iii) Establishing mechanisms for effective environmental flow assessment using cost effective approach so as to understand the required minimum flow. (iv) Establishing mechanisms to assist water allocation for various users putting into consideration sustainability for the environment at regional level (v) Seriously address alien invasive species (vi) Effective measures for protection of water sources (vii) Formulate strategies to promote best practices for mitigating climate change impacts Proposed Policy Direction Implement water resource management practices that will focus on preventing negative environmental impacts of human activity, ensuring that water is used beneficially and efficiently, and ensuring that water related activities aim at enhancing or causing least detrimental effect to the natural environment. Promote Environmental flow assessment (EFA) as a management tool that can assist the Basin Water Board to meet the challenges of balancing the diverse needs for water between the amount of water that can be withdrawn from a river for the different human uses and the amount of water that the river needs to sufficiently maintain ecosystems through multi-sector approach. Prepare national inventories on the condition and extent of wetlands, floodplains and riparian ecosystems, as a basis for ensuring their long term protection. Water allocation to sustain environmental flows should be mainstreamed in the water allocation system having determined actual needs.

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(ii)

Addressing alien invasive species

The increased nutrient loads from sewage, together with other nutrient sources, have resulted in a five-fold increase in algal growth in Lake Victoria, deoxygenation of the lakes bottom waters, clogging of the water intake filters, increased chemical treatment costs for urban centers, and localized fish kills. The high nutrient concentrations in the lake waters promoted the growth of water hyacinth, which spread rapidly around the shoreline in 1998, causing considerable economic loss to fishermen and to ferry operators. The sudden and destructive infestation of water hyacinth in the lake was successfully controlled with assistance from LVEMP I which laid foundation for effective management of the lakes economically important fishery through the Lake Victoria Fisheries Organization. Proposed Policy Direction Partner States will work individually and collectively to control the alien invasive species. (iii) Water source protection

In order to enhance availability of water for the environment and ecosystem sustainability protection of water sources is very critical. The national water policy for Uganda addresses this issue under section 6.4.5 (vii) and under section 3.5(ii) of the National Environmental Management Policy of Uganda. and section 7.5(i) of the National Policy for the conservation and management of wetland resources. In Rwanda protection of water sources is stipulated under section 4.3.1 (c) while in Tanzania is under sections 4.2 and 4.4.2. Protection of water sources is also addressed by the sector policies. For instance in Uganda, the national land policy protection of water sources is stipulated under section, 1.4.2(g), the national environmental management policy under section3.5(ii) and the national policy for the conservation and management of wetland resources section7.5(i). Sector policies in Rwanda that address the issue of protection of water sources include national forest policy section 4.8, national environmental policy sections 5.2.2(b)(ii) and 5.2.3(b)(v), national land policy section 4.1(b), national water supply and sanitation services section 4.10.1 para 2 and 4. Proposed Policy Direction Uphold the principle of the protection and preservation of the ecosystems of tranboundary watercourse within the Lake Victoria Basin; Uphold and promote the principle of community of interest in an international watercourse whereby all States sharing an international watercourse system have an interest in the unitary whole of the system. (iv) Climate change

Climate change is an issue of concern on its impact to availability of water and the sustainability of the environment and aquatic ecosystem. Concerted measures have to be taken to strategize on mitigation measures. East Africa, like many other regions of the world, is is prone to extreme meteorological events, being susceptible to severe droughts and extreme floods. Human activities and global warming is recognised as exacerbating these natural disasters, with the related consequences on peoples quality of life and the environment. The effects of climate change may be especially critical to the achievement of development objectives related to the most vulnerable groups and communities in the region. The projected impact of climate change on access to natural resources, heat-related mortality and spread of vector-borne diseases such as malaria, for example, has direct implications for the achievement of several of the Millennium Development Goals. In Tanzania this issues is stipulated under section 4.8.2 of the NAWAPO while Rwanda Water Policy gives this provision under section 4.3.1(d) and 4.3.3 (d). Section 6.2 of the Uganda national water policy addresses this critical issue. The issue of climate change is also addressed by sector policies. In Uganda, the national land use policy section 1.4.1(j) and the national environmental management policy section 3.10 while in Rwanda the national environmental policy section 5.2.2(b)(iii and vii) and the Rice Policy addresses the aspect of climate change. In Tanzania only the national irrigation policy touches on addressing climatic change issues.

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Proposed Policy Direction Develop capacity, Human resources and Institutional level, to cope with climate change and extreme events, including climate change analysis is included in planning for development projects/programmes. Promote science-policy dialogue to communicate research findings on climate change. Focus on water security, which requires sound water resources management and development, balance between hard and soft strategies, manage demand as well as increase supply and encourage rainwater harvesting. Infrastructure investments, and in particular storage, will be essential in many places in the region.

8.3.4 (i)

Building Block 4: Water Quality Management and Pollution Control

Water allocation for the environment/sustaining aquatic ecosystems

Sustainability of the environment as well as the ecosystem depends so much on how water is made available to it. In Tanzania the NAWAPO recognize the need for allocating water resources to sustaining the environment and the aquatic ecosystem (section 4.1.2). In Uganda this is well elaborated under sections 4.3.3 (ii); 6.3 (i); 7.4(ii); 8.1(ii) and 8.2. Rwanda water Policy gives the provision of the above scenario under section 4.3.2; 4.2.1(b) and 4.3.4. In addition even the sector policies recognize the need of allocating water for the environment. In Uganda the national fisheries policy under policy statement 8, policy objective 3; the national environmental management policy under section 3.4 (principle 5) and strategy vii, 3.5 (principle 5) and the national policy for the conservation and management of wetland resources under sections 5.1(first goal), 5.2 (goal 2), 7.1(i) and 7.2(i). In Tanzania the sector policies that address this issue include the national fisheries policy sections 3.2, 3.3.6 and 3.3.7; national environmental policy section 48(a-c), national forest policy section 3.0, the national agriculture and livestock policy sections 3.2(b),(f) and 4(a-c). In Rwanda the sector policies which have provisions for water allocation for the environment and aquatic ecosystems include national environmental policy section 5.2.2 (a), 5.2.2 (b)(i) and 5.3.1(b)(vii); national water supply and sanitation services section 4.10.1 para 2. For Kenya allocation of water for environment and aquatic ecosystem is provided for. The national fisheries policy of Uganda covers this issue under section 8.2.1 It was noted during preliminary discussion in Uganda that, the country has a number of industries around Lake Victoria which results in has effluents that are discharged into the lake non-treated or partially treated. This affects population even Ugandans themselves who are depended on lake water for the fishery etc. It is strongly required that the effluents are treated to acceptable levels in order to protect the health of the people. It was noted strongly that Industrial effluents have direct national and regional implications. Industry sector is not competing with other sectors there is a lot of water. North Eastern part of Uganda which is dry is dry are so there be competition in future Based on the above review in order to ensure proper allocation of water for the environment and aquatic ecosystem the following are needed (viii) Establishing mechanisms for effective environmental flow assessment using cost effective approach so as to understand the required minimum flow. (ix) Establishing mechanisms to assist water allocation for various users putting into consideration sustainability for the environment at regional level (x) Seriously address alien invasive species (xi) Effective measures for protection of water sources (xii) Formulate strategies to promote best practices for mitigating climate change impacts

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Proposed Policy Direction Implement water resource management practices that will focus on preventing negative environmental impacts of human activity, ensuring that water is used beneficially and efficiently, and ensuring that water related activities aim at enhancing or causing least detrimental effect to the natural environment. Promote Environmental flow assessment (EFA) as a management tool that can assist the Basin Water Board to meet the challenges of balancing the diverse needs for water between the amount of water that can be withdrawn from a river for the different human uses and the amount of water that the river needs to sufficiently maintain ecosystems through multi-sector approach. Prepare national inventories on the condition and extent of wetlands, floodplains and riparian ecosystems, as a basis for ensuring their long term protection. Water allocation to sustain environmental flows should be mainstreamed in the water allocation system having determined actual needs. (ii) Addressing alien invasive species

The increased nutrient loads from sewage, together with other nutrient sources, have resulted in a five-fold increase in algal growth in Lake Victoria, deoxygenation of the lakes bottom waters, clogging of the water intake filters, increased chemical treatment costs for urban centers, and localized fish kills. The high nutrient concentrations in the lake waters promoted the growth of water hyacinth, which spread rapidly around the shoreline in 1998, causing considerable economic loss to fishermen and to ferry operators. The sudden and destructive infestation of water hyacinth in the lake was successfully controlled with assistance from LVEMP I which laid foundation for effective management of the lakes economically important fishery through the Lake Victoria Fisheries Organization. Proposed Policy Direction Partner States will work individually and collectively to control the alien invasive species. (iii) Water source protection

In order to enhance availability of water for the environment and ecosystem sustainability protection of water sources is very critical. The national water policy for Uganda addresses this issue under section 6.4.5 (vii) and under section 3.5(ii) of the National Environmental Management Policy of Uganda. and section 7.5(i) of the National Policy for the conservation and management of wetland resources. In Rwanda protection of water sources is stipulated under section 4.3.1 (c) while in Tanzania is under sections 4.2 and 4.4.2. Protection of water sources is also addressed by the sector policies. For instance in Uganda, the national land policy protection of water sources is stipulated under section, 1.4.2(g), the national environmental management policy under section3.5(ii) and the national policy for the conservation and management of wetland resources section7.5(i). Sector policies in Rwanda that address the issue of protection of water sources include national forest policy section 4.8, national environmental policy sections 5.2.2(b)(ii) and 5.2.3(b)(v), national land policy section 4.1(b), national water supply and sanitation services section 4.10.1 para 2 and 4. Proposed Policy Direction Uphold the principle of the protection and preservation of the ecosystems of tranboundary watercourse within the Lake Victoria Basin; Uphold and promote the principle of community of interest in an international watercourse whereby all States sharing an international watercourse system have an interest in the unitary whole of the system.

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(iv)

Climate change

Climate change is an issue of concern on its impact to availability of water and the sustainability of the environment and aquatic ecosystem. Concerted measures have to be taken to strategize on mitigation measures. East Africa, like many other regions of the world, is is prone to extreme meteorological events, being susceptible to severe droughts and extreme floods. Human activities and global warming is recognised as exacerbating these natural disasters, with the related consequences on peoples quality of life and the environment. The effects of climate change may be especially critical to the achievement of development objectives related to the most vulnerable groups and communities in the region. The projected impact of climate change on access to natural resources, heat-related mortality and spread of vector-borne diseases such as malaria, for example, has direct implications for the achievement of several of the Millennium Development Goals. In Tanzania this issues is stipulated under section 4.8.2 of the NAWAPO while Rwanda Water Policy gives this provision under section 4.3.1(d) and 4.3.3 (d). Section 6.2 of the Uganda national water policy addresses this critical issue. The issue of climate change is also addressed by sector policies. In Uganda, the national land use policy section 1.4.1(j) and the national environmental management policy section 3.10 while in Rwanda the national environmental policy section 5.2.2(b)(iii and vii) and the Rice Policy addresses the aspect of climate change. In Tanzania only the national irrigation policy touches on addressing climatic change issues. Proposed Policy Direction Develop capacity, Human resources and Institutional level, to cope with climate change and extreme events, including climate change analysis is included in planning for development projects/programmes. Promote science-policy dialogue to communicate research findings on climate change. Focus on water security, which requires sound water resources management and development, balance between hard and soft strategies, manage demand as well as increase supply and encourage rainwater harvesting. Infrastructure investments, and in particular storage, will be essential in many places in the region.

8.3.5 (i)

Building Block 4: Water Quality Management and Pollution Control Water quality monitoring and assessment

Water quality is one of the critical issues that need great attention with regard to formulation of water related policies. Water quality status can be established if there is a monitoring and assessment mechanism in place. Existence of water quality standards assists in monitoring and assessment process. The national water policies of East Afica community states take into account this issue to some extent. For instance the Tanzanian National Water Policy provides provision for undertaking water quality monitoring and assessment under section 4.2.2; 4.4.1 and 4.5. Sections 3.2; 6.2(i) and 6.4.1 of the Uganda National Water Policy stipulate the need of carrying out water quality monitoring and assessment. However, the National Water Policy for Rwanda does not take into account this issue. Proposed Policy Direction Water quality monitoring and assessment will be undertaken systematically so as to identify extent and status of the quality of the transboundary water resources so that problems are detected early and remedial actions taken timely. (ii) Water quality standards (receiving water quality standards, effluent discharge standards)

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With regard to water quality standards the reviewed water policies indicate that existence of water quality standards particularly for receiving water quality standards and effluent discharge standards have been to some extent addressed. For instance Uganda National Policy gives provisions for this under sections 6.3(iii); 7.2 and 8.5.3(ii) while Rwanda National Policy stipulates this under section 4.3.4(a). For Tanzania, NAWAPO has provision on this under section 4.2(i)(a) and 4.5. Water quality standards vary from country to country in the Lake Victoria Basin. The maintenance of these national standards is generally constrained by lack of material, human resources and financial capacity. There is a study going on to harmonize the standards. Proposed Policy Direction Member States uphold common minimum standards of water quality in shared watercourses and pool available resources for their maintenance. Promote Environmental Impact Assessments (EIAs) for projects planned to utilize on transbounary water resources. Partners States shall avoid importation of pollutants from other countries into the region for disposal. (iii) Water pollution control

Water quality management and pollution control one of the core functional responsibilities for water resources management and is provided for in NAWAPO and WRM Act. The water quality and pollution problems within the country have generally changed to some extent at some areas in accordance with population growth, urbanization, industrial development including mining. Pollution may seriously affect availability of the already scarce water resources for various uses including environmental sustainability. Water quality standards and legislation together with water quality monitoring are used as administrative means for water resources management. The impact of water pollution on water quality is well known and thus efforts to address this problem need to be effective. Controlling water pollution is recognized in all reviewed water policies. For example, Uganda water policy under section 2.2 and 4.3.3 (vi) and Rwanda water policy under section 3.3 (para 2) emphasizes controlling all economic activities which can pollute water resource and advocate use of polluter pays principles. The NAWAPO addresses this under section 4.8.2 and 4.8.4 In order to enhance water quality management and pollution control at regional level the following need to be in place: (i) (ii) (iii) (iv) (v) Measures to control pollution for transboundary water resources need to be formulated and or strengthened Encourage cleaner production Establish mechanisms for applying polluter pays principle. Use of appropriate technology that ensure sustainable industrial development Measures to enhance compliance to the set water quality standards.

The Uganda Water Policy has explicit provisions for management of wastewater discharges and regulation and establishes a permit system as a permanent national function under the DWD. This arrangement is largely due to the fact that the function which requires detailed technical expertise and the need to adherence to international and national standards. The policy also recognizes that there are increasing cases of water quality degradation caused by both natural and human factors. The deterioration of the water quality of Lake Victoria is attributed to the direct industrial and municipal waste discharges which has also lead to the spread of water hyacinth. The Tanzania National Water Policy notes that environmental degradation and pollution of water sources from increasing discharge of untreated and partially treated municipal and industrial wastewater contribute to the deterioration of the quality of the water resources. The policy recognizes that pollution from point and non-point sources of water resources is responsible for the deterioration of the quality of water, makes water unusable and its treatment very costly. It also notes that increased human activities including poor land use practices, as well as uncontrolled abstractions and pollution of water bodies impact on the quantity and quality of the available water

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resources. Then proliferation of water hyacinth in Lake Victoria, and in some rivers and reservoirs, is a result of high nutrient levels. Measures stipulated in the policy include water quality monitoring and assessment to be undertaken systematically, conjunctive assessment of quality and quantity of water resources, application of polluter pays principle, development and implementation of practical and cost effective water quality and pollution control monitoring programs (including networks) will be developed and implemented. Factories, municipal authorities, large irrigation schemes and mining operations will be required to collect and keep accurate records of the quality of effluents into receiving water bodies. Water quality management and pollution control one of the core functional responsibilities for water resources management and is provided for in NAWAPO and WRM Act. The water quality and pollution problems within the country have generally changed to some extent at some areas in accordance with population growth, urbanization, industrial development including mining. Pollution may seriously affect availability of the already scarce water resources for various uses including environmental sustainability. Water quality standards and legislation together with water quality monitoring are used as administrative means for water resources management. Rwandas draft water policy: The present water resources policy calls for appropriate actions to improve catchment management whose effect would be enhanced protection and conservation of forests as a measure to contribute to the water pollution control. Proposed Policy Direction Creation of public awareness in the importance of protecting water resources from pollution including that resulting from point and non-point sources. Practical and cost effective water quality and pollution control monitoring programs (including networks) will be developed and implemented. Factories, municipal authorities, large irrigation schemes and mining operations will be required to collect and keep accurate records of the quality of effluents and submit the same to relevant water management institutions. The "polluter pays principle shall apply in conjunction with other legal and administrative measures. 8.3.6 Building Block 5: Security from water-related disasters

(i)

Protection from floods and droughts

Security from water-related disasters under this review included three mains aspects. These are protection from floods and drought; prediction, planning and management of natural disasters and provisions for dam safety management. The National water policy for Uganda addresses the issue of protection from floods and droughts under section 8.1(v) while that of Rwanda is under section 4.3.1(g). Section 4.8.2 of the National Water Policy for Tanzania stipulates the needs of having flood mitigation plans. Protection from drought related disasters is addressed to some degree in all national water policies under review. The East African countries are prone to extreme meteorological events, being susceptible to periodic but severe droughts and extreme floods. Human activities and global warming is recognised as exacerbating these natural disasters, with the related consequences on peoples quality of life and the environment. Management of floods and droughts is and protection of people and property is a fundamental function of Partner States governments. Safety on the lake is another critical factor that needs to be harmonization to protect life and property. It was noted

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that in North Eastern part of Uganda which is dry is dry are so there be competition in future. Uganda is in final stage of preparing flood management Strategy will be integrated into the Zones for implementation. Uganda is in the process of development its framework for management of natural disasters, which have been a result of poor catchment management and on going degradation. Rwanda informed that it is implementing Early Warning System which focuses on focusing on floods and droughts is being implemented in Rwanda. It was recommended that there is need to have same system in all countries which has to be linked regionally. Also recognize is the need for information sharing and harmonization, and sharing on climate change which has no boundaries, and floods and droughts, and pollution control among others. Proposed Policy Direction Facilitate and coordinate the management of natural disasters associatd with transboundary water resources. Member States shall commit themselves to protect human life, livestock, property and the environment against the effects of water related natural and human-induced disasters. Promote the development and implementation of Early Warning System for floods and droughts for national and regional use. (ii) Prediction, planning and management of natural disaster management

With regard to the issue of prediction, planning and management of natural disasters, the review of water policy indicate inadequate attention to this issue. However the National Environmental Policy for Uganda under section 3.10(strategy viii) and the national environmental policy for Rwanda under section 5.4(a)(i), 5.4(b)(i-iv) addresses in detail this aspect. In Tanzania the National disaster management policy is very comprehensive on this issue where sections 2.1.1 to 2.1.5 set various mechanisms for prediction, planning and management of natural disasters. Proposed Policy Direction Prepare an implement effective regional and watercourse strategies to improving the regions capacity in predicting water-related disasters associated with floods and droughts. Develop disaster preparedness responses measures at regional level for dealing with floods and drought disasters. Develop a framework that can enable early warning, prediction, planning and management of water related natural disasters and have contingency plans and resources available to minimize the impacts. Flood and drought monitoring stations and early warnings systems will be established so as to detect prospective floods and drought occurrences and disseminate information to the public in advance. Flood and drought control infrastructure, including dam safety measures, will be promoted, as will measures for impact mitigation against water resources pollution from accidental chemical pollution. Partner states State have an obligation to notify and share knowledge and information with affected watercourse States in the event of actual or pending water related disasters. (i) Provisions for dam safety management

The National Water Policy for Uganda addresses the issue of dam safety management under sections 6.4.7(i), 6.4.7(iv) and 6.5(ii). While that of Rwanda and Tanzania have provisions on this issue. Tanzania has already included this aspect in its Water Resources Management Act and draft regulations are in approval process. Tanzania national disaster policy also has provisions for dam safety management under section 2.1.1(i-ii). The National Environmental Management Policy for Uganda section 3.9(xiii) and the Tanzania National Human Settlements Development Policy Par 3.3.2 sect vi to some extent addresses the issue of dam safety management.

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Proposed Policy Direction (i) (ii) (iii) Develop strategies for enhancing dam safety management. Strengthen capacity for dam safety management through development of appropriate safety guidelines and institutional capacities for enforcement of the guidelines. Comprehensive and objective assessment of the economic, social, and environmental impacts would be carried out and adequate mitigation measures put in place for implementation at regional and national levels. 8.3.7 (i) Building Block 6: Water resources information, management and exchange

Data collection and information management

Water resources assessment of both surface water and groundwater, quantitatively and qualitatively, is a fundamental element of the water resources planning. The assessment is currently inadequate and is weakened by a lack of unified information bases at both basin and national levels. Rwanda draft water policy sites existence of weak data collection and research to support water resources related planning and development, as well as lack of data and information exchange mechanisms between regional river basin riparian countries. Tanzania policy notes that presently, the hydrometric, water use and water quality information base is poor. The data collection networks are in a state of near total collapse due to lack of adequate resources and tools, but the situation is gradually improving through ongoing intervention by the Water Sector Development Programme. Uganda recognizes that data and information is the key to rational and optimal management and use of water resources. Within East Africa region there is need to focus on harmonising and consolidating the information base to support integrated water resources management and development of transbondary water resources. In Uganda it was the opinion that under the LVBC there has to be a framework to remind countries that whatever plans are made or need o prepared then data and Information is a critical starting point. Thus a minimum level of data collection network is needed to cater for region needs to address, among others: Pollution issues Water issues Water resources issues Water allocation issues Early warning of disasters There is also need to standardise data collection and management procedures. Confidence and trust is important to achieve effective regional data and information management and exchange. It was strongly felt that cooperation will not move if you dont trust each other. It is a matter of Give and Take. Rwanda: noted that there is need to promote information sharing through Internet, Websites need to be promoted . It is of benefit to some specific regional news on the website. Knowledge management strategy must be built in the region, to share and to be profitable for the region. The better way to learn is to share experiences, so that you can learn by doing and avoid wasting resources. Burundi noted that at national level there is need to establish a national working group which collects information and communicates to national and regional stakeholders. Burundi plans to set up a national water resources institution which can play coordination role. Currently transboundary WRM is a gap. Proposed Policy Direction

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Partner States will strengthen existing system of data collection, processing, storage and dissemination of various transboundary water resources data. Data quality Control will be an integral part of the data management system. Strengthen the the operational capacity for data collection, management of information and assessment of water resources on the basis of simplified, practical needs of the basin. Promote information sharing through internet, websites need to be promoted. Some specific regional information and news can be posted on the website on a regular basis. As well, knowledge management strategy must be prepared for the benefit of the region. (iii) Data and information exchange

The Nile Bain Initiative Water Policy Guidelines and Compendium of Good Practice has shown that information exchange with stakeholders is enhanced by the following principles: Appropriateness: Providing information that is relevant to the IWRM task at hand has been tested in the field and rigorously proven through research and development. Information must also be applicable to the type of problem, the level of institutional capacity and the technical ability of the practitioners. If capacity is lacking, special efforts will be needed to facilitate information exchange. Internet-based information is key but where it is not easily accessible, alternatives must be used. Accessibility: It is important to build on the current capacity of practitioners rather than to require major upgrades in individual or organisational or technical ability. Equity: Information exchange should respect cultural needs and gender issues, and take care not to discriminate against users or providers because of their remote locations. Lessons from broadening participation in IWRM: Involving women in water project planning is a powerful way of transforming social gender roles, resulting in more sustainable projects. Experience has shown that projects that involve disadvantaged and previously overlooked groups (such as women and indigenous groups) in planning and decision making are implemented faster, with fewer problems and with less costly maintenance once operational. The level of participation should take the form appropriate to the scale of the problem or service in question. Currently there is no data and information sharing protocol yet although there is some form of data sharing. The water release and abstraction policy it is a mathematical equation, but a policy that also looks at how this be organized is required. Proposed Policy Direction Establish of an effective system of local and international exchange of information will be strengthened, with a view to increase knowledge and experience, efficiency, and collaboration. Promote timely sharing of relevant available information and data regarding the hydrological, hydrogeological, water quality, meteorological and environmental condition of shared water resources. (v) Water resources assessment

One of the biggest challenges of the water sector in Tanzania has been a clear understanding of the available water resources for fair, transparent and equitable water allocation. NAWAPO requires that water resources assessment

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will be based on sound scientific and technical information and understanding. It will define the status of surface and groundwater resources in terms of quantity and quality and use on the basis of water basins and aquifer boundaries; and the information will be made readily accessible to users, stakeholders and decision makers. Water sector staff training should facilitate effective water resources assessment and monitoring and sharing that knowledge through various means. Good quality data is essential for water resource planning and management. Proposed Policy Direction Promote establishment and cooperation in establishment of efficient hydrological, hydrogeological and meteorological data acquisition and dissemination systems related to transboudary water resources. Strengthen the capacity of national and regional hydrological agencies capacities for data analysis, information management and dissemination. Adopt compatible systems for transboundary water resources data and information acquisition and management. 6.4.8 (i) Building Block 7: Institutional framework for water resources management

Structure and systems of management at national level (including river/water basin structures)

Existing national institutional frameworks have been detailed in chapter 3. All national frameworks promote decentralised management of water resources to either basin/catchment, district, and local government levels as is done in Rwanda. Uganda is moving to establish management Zones which are similar to Basin or catchment adopted by Kenya and Tanzania. The current basin and other national level institutions have no institutionalized working relations among them. All the Partner States consider water resources planning and management to be a central part of government responsibility. This view is consistent with the international consensus that promotes the concept of government as a facilitator and regulator, rather than an implementer of projects. There is need to put in place a framework and structure for conflict resolution mechanisms and ensure stakeholders participate. It was felt the Decision Support System (DSS) is an important tool towards cooperation and informed decision. It means information, science openness, science, cooperation and hence research and capacity building. Proposed Policy Direction Promote decentralised the management of water and the associated authority to the lowest appropriate level, while maintaining appropriate institutional arrangements for the management of shared watercourses. Promote appropriate institutional arrangements to enhance the stakeholder participation, gender in taking decisions on planning and management of transboundary water resources at national and local. Promote framework and structure for conflict resolution and ensure stakeholders participation. Develop scientific tools for conflict resolution backed with appropriate training. (iii) Proposed Monitoring and Evaluation system

Monitoring and evaluating is a necessary tool to assess achievement of water resources management policy implementation. A regional monitoring and evaluation system in shared watercourses would be coordinated by the Lake Victoria Basin Commission. In water resources management, below proposed indicators draw from the 2005 World Bank Report No. 32877 titled, Lessons for Managing Lake Basins for Sustainable Use. The indicators focus on strengthening institutions for IWRM, which are mainly: Process indicators WRM legislations, regulations and treaties; WRM institutions at the national, basin, subcatchment and Water User level, water resources information, sustainable financing for water resources

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management - the enabling elements for improving river basin and lake basin management institutions. Stress reduction indicators - such as improved water use efficiency and protection of watersheds and the preparation of integrated water resources management plans. Proposed Policy Direction Partner states will promote the establishment and implementation of a transparent and independent monitoring and evaluation system for policy implementation in order to assess achievement of its development goals, objectives, strategies, programmes and institutional performance for transboundary water resources.

8.3.9 (i)

Building Block 8: Stakeholder participation, awareness creation and capacity building Mechanisms for stakeholder participation at national level and regional levels

Access to natural resources invariably involves competing uses and, therefore, the potential for conflict and the need for effective conflict resolution mechanisms at national and transboundary levels. Thus, involvement of all stakeholders is critical. People will only take ownership (or buy into) a system if they are assured that it is fair, effective, efficient, accountable, transparent, and sustainable. Historical distrusts among stakeholders and riparians must be overcome. National and local customs and norms need also to be respected. Stakeholder participation is a pre-requisite for effective and sustainable integrated water resources management and development in both national and transboundary basins. Adequate involvement and participation of stakeholders in planning, management and decision making at all levels, on issues related to water resources management and development need to be strengthened. The international principle on water and sustainable development, (Dublin Statement, UNCED and Rio Agenda 21), which is adopted by NAWAPO provide the following guiding principle: Water management and development should be based on a participatory approach, involving users, planners, and policy makers. Women play central role in the use, management and protection of water resources and thus should be involved fully in the decision making process. Proposed Policy Direction To ensure appropriate mechanism for stakeholder participation the following policy need consideration: Promotion of effective conflict resolution mechanisms at national and transboundary levels in which stakeholders will have a role to its development and implementation. Involvement and participation of stakeholders in planning, management and decision making at all levels. (ii) Existing capacities for participation in water resources management at national level

The core to successful water resources management lies on building the knowledge, skills and institutional base at the national, basin and local level to utilize the relatively new and multi-disciplinary tools of integrated water

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resources management. With the advent of the present approaches to water resources management, which emphasize integration of sectors, comprehensiveness, participation and subsidiarity, and which treat water as both a social and economic good, the requirements for knowledge and skills now go beyond the traditional skills of hydrology and engineering to include economics, law, environmental and the social sciences, and skills for water conservation and water demand management. Also, specific tools such as River Basin Modeling and Decision Support Systems, as well as strategies for communicating and engaging with communities and stakeholders, are now essential. To build that kind of knowledge and skills to water sector staff will entail consideration of what are really the challenges that we want to address in the sector. The main objective of Capacity Building needs to identify and prioritize water resources related capacity building needs of the relevant national and regional institutions and stakeholders in relation to transboundary water resources and to recommend appropriate intervention measures required to address these needs. Specific objectives to address the transboundary dimension capacity needs would be: to carry out a capacity needs assessment to identify appropriate capacity building activities; to recommend a comprehensive strategy for implementation including monitoring and evaluation mechanism; to outline a programme for capacity building. Institutions targeted for capacity building comprise of all water related institutions and agencies at regional, national, basin, local governments and village councils levels. Capacity Building Implementation Strategy will include human resources development to focus on capacity needs based on new approaches to water resources management, which emphasize the integration of sectors, participation, comprehensiveness, and subsidiarity, and which treats water as having both social and economic values. Strengthen Training Institutions for IWRM will enable these training institutions to output new generation of well trained and skilled IWRM experts. Proposed Policy Direction To ensure effective capacity building for water resources management the following policy may be considered: Capacity building needs of regional and national intuitions will be identified and prioritized with a view to recommend appropriate intervention measures required to address these needs based on new approaches to water resources management which emphasize the integration of sectors, participation, comprehensiveness, and subsidiarity. Regional and national training institutions capacity will be strengthened to offer appropriate courses for new generation of well trained and skilled IWRM experts at national and regional level. (i) Gender Mainstreaming for water resources management

It has been shown in section that gender mainstreaming in water resource management is one of key issues which need great attention. This is due to the fact that without deliberate efforts men and women will continue to have unequal access and control over water resources. Proposed Policy Direction

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To ensure that both women and mane are active participants in all aspects related to management the following policy need to be considered: Gender mainstreamed in water resources use and management through capacity building, institutional strengthening and affirmative action in the composition of various groups in institutions related to water resource management. Ensuring that all units and all personnel within the system have the responsibility for ensuring involvement of both men and women in all aspects of programmes and policies on transboundary water resources. Incorporating gender concerns into the planning and decision making, and promotion of process. 8.3.10 Building Block 9: Research and Development (I) Demand-Driven Water Related Research and Technology Development

Tanzanias National Water Policy underscores that integrated water resources management is a complex process, which takes into account environmental, ecological and socio-economic concerns in the planning and management of the resource, aimed at solving the problems of supply, demand and control. There is no explicit mention of research in the Uganda policy. It further notes that very little research or identification of low cost technologies is done and is not sustainable, and there is lack of sectoral coordination, and research findings are not disseminated to users. The policy stipulates measures to promote research. During discussion in Uganda it was highlighted that there are two projects being done at regional level by the University of Dar es Salaam and Makerere University under the auspices of LVBC. However current researches are not based on agreed policy, they are implemented as projects per need. It was also noted that capacity building through specialized training is essential in order to develop regional capacities to undertake research, and that research and ongoing capacity building is important. In Uganda a WR Institute is being established, which will promote applied research and train people to implement IWRM. Rwanda emphasized on coordination of research, a clear plan for research on complementary basis between Partner States to optimize available funds, and sharing of reserach findings. Burundi emphasised need for understanding quantity and quality and how this water is being used now and future. Thus Research must be a daily activity and government should be positive and allocate adequate funds for the purpose. From discussion Burundi was of the view that the region can promote water foot print theory. That is, instead of every Partner State producing everything, one country can produce specified good for others. In this way water can be saved by one country for use by others. Proposed Policy Direction Adopt effective and efficient demand-driven water sector research and technology development in the Region and promote the use of research outcomes Strengthen existing national and regional individual researchers and research institutions, and improved communication and collaboration between research institutions. Promote publication, dissemination and implementation of research findings Promote complementary production of goods among Partner States. 8.3.11 Building Block 10: Financing integrated water resources management (i) Sources of funds for water resources management

All countries recognize the importance of sustainable financing for water resources management. Expenditure for

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the recurrent costs of water resources management has been derived primarily from two sources. Firstly, the Government exchequer provides funds through budgetary allocations to the Ministry responsible for Water and, secondly, through charges for water abstractions, effluent discharge; government subsidies and donor supports to specific areas of water resources management. The constraint of inadequate resources has resulted into poor performance of variety of technical, administrative and legal activities, as well as deterioration of infrastructure for continuous water resources data collection, which are important for water resources management. Financing is a key to effective WRM, which can look at the following points: Charges of using water Look at Financing strategies which can be sustained Countries can have policies on general research by Region needs targeted research It was expressed during preliminary discussion that financing the interventions for transboundary water resources management is not coordinated. The only coordinated effort is LVEMPI and II. WRM is much relying on external funds, which is somehow not always forthcoming. It was also felt that at regional level the states contribute to EAC, these contribution should include funds for water resources management of Transboundary significance. External financing can come to support this e.g building information systems. It was felt that there is need to promote the establishment of Regional Environment Trust Funds. It is important to recognize the links between, for example, Regional bodies supporting WRM eg. financing agriculture water use efficiency which depends on water will in turn support WRM financing. Payment of ecosystem services eg. tourist, navigation, fishing, is benefiting from quantity and quality of water Therefore there is information in the region which needs to be harmonized eg. Climate change which has no boundaries. Drought information, Flood information can be shared. So there are things which govt can finance and others through joint initiatives. This may include WRM and Pollution Control. generating money but are benefiting from WRM. So they should pay for maintaining WRM. Government has to priorities these issues, it is ownership issues, lobby for international donors for transboundary programs [need to demonstrate benefit and sustainability. In terms of implementation of laws there is weak enforcement, and there is room to improve the governance of water and environment governance. The finances so collected are used to meet the cost towards water resources management and regulatory functions which include the following: (i) (ii) (iii) (iv) (v) (vi) (vii) Water abstraction regulation Wastewater discharge regulation Monitoring, assessment and forecasting Watershed management Enforcement Mediation Capacity building

Proposed Policy Direction Partner states will ensure the collection of adequate fees/charges from water abstraction and use of transboundary water resources for economic purposes, as will the discharge of effluents. The level of abstraction and discharge charges and the criteria to be used in setting such charges will be subject to regular review and approval based on criteria and guidelines established by Partner States. The funds so generated will be used by the Partner States for

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water resources management in their respective countries. Special cconsideration will be given to requirements of the poor and the vulnerable. (ii) Financial Sustainability for water resources management

Almost all the organisations implementing international water agreements in Africa lack adequate funds to go about their business. Contracting States must therefore realise that international water agreements like national statutes requires adequate funds for their implementations and therefore such funds must be catered for in their annual budget so as to provide regular budgets to the organisations or have provisions that authorises the Executive organ of the Organisations to implement user pays principle in addition to polluter pays principles to secure sufficient funds within the sector for its implementation. Donor's funds should only be relied upon for specific development but not for operation and maintenance of the Organisation just as in the same way the national governments operates and therefore should not be expected to funds itself or left at the mercy of donors. Currently, there is financing, and in order to close it the level of user fees collection must be increased through billing efficiency, raising the collection efficiency; enhancing payment practice through better enforcement mechanisms; and through review of water user tariffs. There is the potential to increase both water use efficiencies and water fee revenues if the water user fee structure is properly designed and more accurately reflects the real economic value of water to particular uses in each transboundary basin. Proposed Policy Direction Partner States will determine the criteria and guidelines for transboundary water resources management based on: (i) (ii) Evaluation of economic value of water resourcesrivers, lakes, swamps/major wetlands, and sensitive catchment areas where competition for scarce water resources is apparent; which would support economic water allocation principle. Determination of financing needs for water resources management and development for all water using and water impacting sectors at all levels-national (and trans-boundary), catchment, sub-catchment and user levels. Financing needs for water resources development (WRD) may include investments in infrastructure (for flood control, hydropower generation, irrigation, urban and rural domestic water supply, industrial and livestock water supply, sanitation and sewerage, industrial wastewater treatment, etc) and associated institutions. Financing needs for water resources management (WRM) may include institutions, systems and infrastructure for allocating water, controlling pollution and managing water quality, and protecting water resources at the basin, national and trans-boundary levels. Financing sources

(iii)

A study to determine financing sources for transboundary water resources would be required to determine - the full cost associated with implementing the various mandates (roles and responsibilities) of all multi-sectoral water management institutions at all levels national (and trans-boundary), basin, catchment (and sub-catchment) and user levels for managing and developing the nations water resources. The determination of the full cost of water can be done under the assumptions regarding phases of institutional development and the level of infrastructure investment and development. 8.4 Follow up actions

The following will be done after

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(i) (ii) (Iii) (iv) (v)

Draft Harmonized laws and regulation will be finalized after agreeing on the main features of the draft policy statements in this report and will be presented with the Draft Policy. Draft MOUs/Agreements for collaboration in the management of transboundary water resources will be finalized after agreeing on the draft policy statements and some of the main elements of Draft Laws and Regulations. Action Plan for the implementation of the proposed Policies, Laws and Regulations will be prepared after agreeing on the draft policy statements. Stepwise process and timeframe for transformation from present situation to future situation Financial resources needed for the implementation of the proposed harmonised policies, laws and regulations

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REFERENCES Policy Documents and Study Reports EAC Secretariat 2002: The Treaty for the establishment of the East African Community. EAC 2003: The Vision and Strategy Framework for Management and Development of Lake Victoria Basin, Main Report. The Republic of Uganda 2008: National Industrial Policy. Ministry of Tourism, Trade and Industry The United Republic of Tanzania, 2010: The National Irrigation Policy. Ministry of Water and Irrigation The Republic of Uganda, 1999: National Water Policy The Republic of Uganda, 1995: National Policy for the Conservation and Management of Wetland Resources. Ministry of Natural Resources The United Republic of Tanzania, 2003: Rural Development Policy. Presidents Office Regional Administration and Local Government The Republic of Uganda, 2003: Tourism Policy for Uganda. Ministry of Tourism, Trade and Industry Republic of Kenya, 2009: Lake Victoria North Catchment Area Management Strategy. Water Resource Management Authority The Republic of Uganda, 2004: The National Fisheries Policy. Department of Fisheries Resources, Ministry of Agriculture, Animal Industry and Fisheries Nile Basin Initiative, 2007: Development of a Kagera River Basin Transboundary Cooperative Framework and Management Strategy in Four Riparian Countries of Burundi, Rwanda, Tanzania and Uganda. Kagera Transboundary Integrated Water Resources Management and development Project, Volume 1; Main Report and Appendices The United Republic of Tanzania, 2003: The National Energy Policy. Ministry of Energy and Minerals Republic of Kenya, 2009: Ewaso Ngiro North Catchment Area Management Strategy. Water Resource Management Authority Republic of Kenya, 2009: Tana Water Catchment Area Management Strategy. Water Resource Management Authority Republic of Kenya, 2009: Athi River Catchment Area Management Strategy. Water Resource Management Authority The United Republic of Tanzania, 2008: Agricultural Marketing Policy. Ministry of Industry, Trade and Marketing The Republic of Uganda, 2008: The Uganda Tourism Act The United Republic of Tanzania, 1997: National Environmental Management Policy. Vice Presidents Office Republic of Uganda (u.d): National Agricultural Extension Strategy Summary. Ministry of Agriculture and Animal Resources The United Republic of Tanzania, 1998: National Forest Policy. Ministry of Natural Resources and Tourism The United Republic of Tanzania, 2000: National Human Settlements Development Policy. Ministry of Lands and Human Settlements Development The United Republic of Tanzania, 2007: National Health Policy: Ministry of Health and Social Welfare Republic of Uganda, 2007: The National Land Use Policy. Ministry of Lands, Housing and Urban Development Republic of Uganda, 2008: National Oil and Gas Policy for Uganda. Ministry of Energy and Mineral Development Republic of Uganda, 2002: The Energy Policy for Uganda. Ministry of Energy and Mineral Development Republic of Uganda, National Trade Policy. Ministry of Tourism, Trade and Industry Republic of Uganda, 1999: The Uganda Wildlife Policy. Ministry of Tourism, Trade and Industry

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Republic of Uganda, 1994: The National Environmental Management Policy for Uganda. Ministry of water, Lands and Environment Republic of Rwanda, 2009: Strategic Plan for the Transformation of Agriculture in Rwanda Phase II, Final Report. Ministry of Agriculture and Animal Resources Republic of Uganda, 1999: National Health Policy. Ministry of Health Republic of Kenya, 2009: Lake Victoria South Catchment Area Management Strategy. Water resources Management Authority Republic of Kenya, 2009: Lake Victoria North Catchment Area Management Strategy. Water resources Management Authority Republic of Kenya, 2009: Rift Valley Catchment Area Management Strategy. Water resources Management Authority Republic of Tanzania, 1997: National Agriculture and Livestock Policy. Ministry of Agriculture and Cooperatives Republic of Tanzania, 1998: The Wildlife Policy of Tanzania. Ministry of Natural Resources and Tourism Republic of Tanzania, 1998: The Mineral Policy of Tanzania. Ministry of Energy and Minerals EAC Secretariat.The Protocol for Sustainable Development of Lake Victoria Basin Republic of Rwanda, 2005: Organic Law Determining the Use and Management of Land in Rwanda Republic of Rwanda, 2009: Rwanda National Construction Industry Policy. Ministry of Infrastructure Republic of Rwanda, 2008: National Urban Housing for Rwanda. Ministry of Infrastructure Republic of Rwanda, 2004: National Land Policy. Ministry of Lands, Environment, Forest, Water and Mines. Republic of Rwanda, 2010: National Rice Policy: Enabling Self Sufficiency and Competitiveness of Rwanda Policy, Issues and Policy Options. Ministry of Agriculture and Animal Resources Republic of Rwanda, 2010: National Policy and Strategy for water Supply and Sanitation Services. Ministry of Infrastructure Republic of Rwanda, 2011: National Policy for Water Resources Management. Ministry of Natural resources, Final Draft Republic of Rwanda, 2010: National Forest Policy. Ministry of Forestry and Mines Republic of Rwanda, 2010: Strategic Plan for the Forest Sector 2009-2012. National Forestry Authority, Ministry of Forestry and Mines Republic of Kenya, 1999: Sessional Paper No. 1 1999 on National Water Policy Republic of Kenya, 2000: National Gender and Development Policy Republic of Kenya, 2001: National Agricultural Extension Policy The United Republic of Tanzania, 1997: National Fisheries Sector Policy and Strategy Statement The United Republic of Tanzania, 2004: National Disaster Management Nile Basin Initiative, 2008: Sio-Malaba-Malakisi Policy, legal and Institutional Ccooperative FrameWork. SioMalaba-Malakisi Transboundary Integrated Water resources Management and Development Project. Final Report Nile Basin Initiative, 2008: Mara River Basin Policy, legal and Institutional Cooperative Framework. Mara River Basin Transboundary Integrated Water resources Management and Development Project. Final Report Primary Sources (a) Treaties Convention on the Law of Non-Navigational Uses of International Watercourses, 21 May 1997, reprinted in 36 ILM 700 (1997) (not entered into force). Convention on the protection and Use of Transboundary Watercourses and International Lakes, done at Helsinki, 17th March 1992, Yearbook of Environmental International Law 703 (1992), (entered into force October 6, 1996).

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Aarhus Convention on Public Participation Convention on access to information, public participation in decision-making and access to justice in environmental matters (25 June 1998, Aarhus). Convention on the Protection of the Rhine (22 January 1998, Rotterdam). Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary, watercourses and International Lakes (17 June 1999). Convention on Environmental Impact assessment in a Trasnboundary Context, Feb. 25, 1991, 30 I.L.M. 800 (1991) (entered into force September 10, 1997). OSPAR Convention for the Protection of the Marine Environment of the North East Atlantic, September, 22, 1992, 32 ILM 1069 (1993) (entered into force March, 25, 1998). Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 822 (1992) (entered into force December 29, 1993). Convention on the Law of Treaties, May 23, 1969, 8 I.L.M. 679 (entered into force Jan. 27, 1980). UN Convention on the law of the Sea, December 10, 1082, 21 I.L.M. 21 I.L.M. 1261 (entered into force Nov. 16, 1994). Montreal Protocol on substances that Deplete Ozone Layer, September. 16, 1987, 1522 U.N.T.S. 3 (entered into force Jan. 1989). Kyoto Protocol to the United Nations Framework Convention on Climate Change, (Open for signature), December 11, 1997, 37 I.L.M. 22 (1998). Cases Corfu Channel Case, Vol.2 Encyclopaedia of Public International Law, 61. Trail Smelter, Arbitration, Vol. 2 Encyclopaedia of Public International Law, 276. Lac Lanoux Arbitration, Vol. 2 Encyclopaedia of Public International Law, 166. River Meuse Diversion Case, Vol. 2 Encyclopaedia of Public International Law, 187. River Oder, Case, Vol. 2 Encyclopaedia of Public International Law, 163. Kasikili-Sedudulsland Case, http://www.icj-cij.org/icjwww/iodcket/ibona/ibonaframe.htm Case Concerning Gabcikobo- Nagomaros Project (Hungary v. Slovak.), 37 I.L.M. 162(1998) (September, 25, 1997). Declarations of Principles and Resolutions of Intergovernmental Organizations ECE Declaration of Policy on Prevention and Control of Water Pollution, including Transboundary Pollution (Decision B (XXV) Geneva, 1980 ECE Code of Conduct on Accidental Pollution of Transboundary Inland Waters (Decision B (41)) Geneva, 1986 ECE Declaration of the United Nations Conference on the Human Environment - Stockholm, June, 1972 UNGA Resolution 34/186 on Co-operation in the field of the Environment concerning Natural resources Shared by Two or More States New York, 18 December, 1979 UNEP Governing Council Decision 6/14, Principles of Conduct in the field of Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by two or more States, Nairobi, 19 May, 1978 UNEP Principles on Environmental impact Assessment, 1987 Declarations and Resolutions of the United Nations Water Conference- Mar del Plata, march, 1977 United Nations Conference on Environment and Development (UNCED)- Agenda 21 (Chapter 17 and 18), Rio de Janeiro, 14 June, 1992 Organization of American States, Declaration concerning the Industrial and Agricultural Use of International Rivers Montevideo, 24 December 1933

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Organization of American States, Inter-American Economic and social Council, Resolution 24- M/66 on Control and Economic Utilization of Hydrographic Basins in Latin America Buenos Aires, 1966 International Conference on Water and Environment, The Dublin Statement Dublin, 31 January 1992 1991 ILC Draft Articles on International Watercourses WHO Standards Secondary Sources (a) Books Wouters P., (ed.) International Water Law. Selected Writings of Professor Charles B. Bourne (London Kluwer, 1997). Gleick, Peter H., The World Water, 1998-1999: the biennial report on freshwater resources. Washington, Dc: Island Press, 1998. Teclaff, L.A., The River Basin in History and Law, (The Hague: Martinus Nijhoff, 1967). Teclaff, L.A., Abstraction and Use of Water: A Comparison of Legal Regimes (New York: United Nations, 1972). Utton, A.E., & Teclaff, L.A. (eds.), Transboundary Resources Law (Boulder, Colorado:Westview Press, 1987). Zaclin, R., & Caflisch, L. (eds.) The Legal Regime of International Rivers and Lakes (The Hague: Martinus Nijhoff, 1981). Birnie and Boyle, International Law and the Environment, (OUP, 1992) Sands, Principles of International environmental law: frameworks, Standards, and Implementation, Vol. 1 (Manchester University Press, 2000) Hughes, Environmental Law, (3rd ed., Buttleworths, 1996) Elworthy and Holder, Environmental Protection: Text and Materials (Buttleworths, 1997) Nollkaemper, A., The Legal Regime for the Transboundary Waters Pollution: Between Discretion and Constraint (Martnus Nijhoff, 1993) E.H.P Brans, E.J. De Haan, A.Nollkaemper, and Rinzema J., (eds.), The Scarcity of Water: Emerging Legal and Policy Responses (Kluwer Law International, 1997) Lester, A., Pollution, Garretson, A.H., hayton, R.D., and Olmstead (eds.): The Law of International Drainage Basins (Oceana publications, 1967) Lipper, J., Equitable Utilization Garretson, A.H., et al. (eds.): The Law of International Drainage Basins (Oceana publications, 1967) (b) Articles Yearbook of the International Law Commission (1970-1994) all of the reports of the ILC, especially Reports of the Special Rapporteurs and the Reports of the Commission of the General Assembly. Natural Resources Journal: Special Issue: Volume 36: No. 2 and No. 3 all articles (pp. 151-439; pp. 441-641). Berberis J., The Development of International Law of Transboundary Resources, 31 NRJ 167 (1991). Wouters P., The Relevance and the Role of water Law in the Sustainable Development of Freshwater. Replacing Hydro-sovereignty and Vertical Proposal with Hydro-solidarity and Horizontal Solutions (forthcoming), in the Swedish International Water Institute Stockholm 1999 Conference Proceedings; reprinted in Water international volume 25. C.O. Okidi, Legal and policy Considerations for Regional Cooperation on Lake Victoria and Nile River, (UNEP, 1996)

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Websites International Court of Justice website: http://www.icj-cij.org United Nation Treaty Website: http://www.un.org/law/ilc/reports Food and Agriculture Organization: http://www.fao.org

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