Customary laws for managing water resources

Current water governance reforms in most southern African countries focus on the legal systems for regulating water use. However, these countries have pluralistic legal systems, which include statutory laws, the customary laws of different ethnic groups and Islamic law.

Recent research coordinated by the University of Dar es Salaam in Tanzania investigated whether neglecting customary laws has negative consequences for poor people. The research, conducted in South Africa, Zimbabwe and Tanzania, shows:

• Customary laws are often more effective than other water governance systems, especially for poor people.
• Empirical evidence indicates that imposed laws usually overshadow the survival of customary practices. In conflicts between local people and the state, the reality is that imposed legal regimes are authoritative.
• There is a general lack of understanding about customary laws amongst water management practitioners and policymakers in the three countries.

The importance of customary laws

In rural South Africa, customary management structures play an important role in managing water resources and settling disputes over water use. Traditional water governance structures respect the community norms and values that guide and inform how critical water resources are consumed, managed, protected, conserved and used. For example, local responses to water scarcity show high levels of cooperation and well-ordered social activity to maintain and protect resources.

Customary laws are also important for conflict resolution. Evidence from rural South Africa shows that traditional ways to settle disputes can be very effective for disputes about water. This is also recognised by local magistrate courts. However, these traditional means could conflict with the Water Tribunals that were established in the New Water Act.

So far, most water sector reforms have not given sufficient importance to customary laws. This research suggests:

• There is a need to improve our understanding of the strengths of customary water arrangements (whilst recognising their weaknesses, such as gender inequality and the limitations of elected leadership).
• New water governance measures should build upon the strengths of customary water laws and be designed from the 'bottom-up', through consultations with local people.
• It is necessary to improve our understanding of possible negative impacts of new water governance legislation on individual entitlements. For example, water licensing to individuals in South Africa's former homelands may erode the customary rights of those who have no licenses.

Faustin P. Maganga
Institute of Resource Assessment, University of Dar es Salaam, P. O. Box 35097, Dar es Salaam, Tanzania
efh@udsm.ac.tz
T + 255 22 2410144

See also

The case studies and guidelines have been published on the project website: www.nri.org/waterlaw

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