Benefit Sharing Principles must Apply to Water Resources
By Samantha Luseno, Resource Mobilization and Partnerships Engagement Officer
Published in the Standard Newspaper on 11th December 2020
Tullow Oil has recently received an extension of its contract to end of 2021 and Ministry of Petroleum and Mining has approved its annual work plan and budget to enable it do so. Water towards the project is envisioned to come from Turkwel Dam in West Pokot County which is predominantly a drought prone region.
The Constitution of Kenya adopted in 2010 but taking effect in 2013 sought to bring public services broadly closer to citizens. The governance of the water sector was among those decentralized specifically cascading down to counties the function of provision of water and sanitation services. Occasioned by the devolution of power, there was great progress in the sector between 2013 and 2018, with key indicators such as water supply coverage in urban and rural areas increasing by 6.6 per cent and 3.1 per cent, respectively.
The sector has had major wins related to governance and institutional frameworks. Through the Water Sector Regulatory Board (WASREB) a National Water Sector Master Plan 2030 was developed and was a product of an intensive study of Kenya’s water resources and meteorological studies. More recently, and through responsible implementing entities, the water sector responded to constitutional changes by enacting the Water Act, 2016 which assigns the responsibility of water supply and sanitation services to the 47 counties; and management of the use of water resources as a function of the national government. The act further establishes institutions such as the National Water Storage Authority, Water Tribunal and Water Sector Trust Fund to support in the streamlining of relevant functions.
While this is commendable, the sector in yet to attain sustainability targets of universal and equitable access to safe and affordable drinking water for all, and is seemingly a long way from doing so. This is evidenced by recent findings of the Kenya National Housing and Population Census, 2019 with over 25 per cent of the population reporting their primary drinking water source as being unprotected. This is higher for rural areas where it currently stands above 40 per cent and marginalized counties like Turkana where it is above 50 per cent. This is indicative of the fact that while there have been developments, water scarcity remains a challenge in the country.
Water remains a sensitive issue for many communities and should issues related to devolution remain unaddressed in coming years, disagreements between national, counties and local communities may prevail. In a recent row between Murang’a and Nairobi Counties, residents of Murang’a County argued that despite Ndakaini Dam siting in the heart of the county they allegedly did not benefit directly from it. Through their legislators’ residents of Murang’a County demanded a share of at least 6 per cent (10 million litres). This dispute was only resolved following the intervention of the Council of Governors requiring that the Ministry of Water and Sanitation develop a benefit sharing mechanism to ensure both counties can benefit equitably.
The West Pokot County which hosts Turkwel Dam, when compared to Murang’a County compares significantly poorer across key water sector indicators. The impact of the water intensive nature of the oil and gas exploration and production alongside the drought prone nature of the region, leads us to believe that continued exclusion of the population and county officials in the process will result in similar outcomes.
Ten (10) years into the implementation of the Constitution of Kenya citizens and county governments alike are more aware of their rights and needs. Therefore, as is the case with other natural resources, the use of water resources for either development projects or to meet the demand of other counties must undergo due process of public participation engaging all relevant stakeholders’ on potential impacts of said use.
The Ministry of Water and Sanitation must support other implementing entities like Ministry of Environment and Forestry as well as the Ministry of Petroleum and Mining in pushing for the enactment of the Natural Resources (Benefit Sharing) Bill, 2018 which applies to water resources alongside other elements. In the interim it must develop a benefit sharing mechanism that gives adequate consideration to county specific demand needs for immediate implementation.
The sector must also work to address other devolution related challenges documented. Like in other sectors, there has been an increased number of public institutions that have led to underfunding for key projects and programmes and resulted in capacity gaps. In addition, while the sector has done well to streamline responsibilities of national and county governments into the Water Act, 2016 overlapping and conflicting mandates must still be addressed as it implements strategies outlined in its Strategic Plan 2018-2022 with a view to attaining sustainability targets.