Avoid water conflicts between counties

Despite the importance of water for human survival, Kenya suffers from a water deficit. It is one of the countries characterised as water scarce. This means that the amount of water available in the country is less than our demand for it. How demand and supply is balanced is critical for sustainability and peaceful co-existence within the country.

This year has been marked by contestation between Nairobi and Muranga counties over the water from Ndakaini Dam. While the Governor of Muranga is on record as threatening Nairobi with cutting of supply, his Nairobi counterpart has dared him to execute the threat, with the latter arguing that the city had paid all that it was required to pay.

The debate between these two counties raises several fundamental issues. First relates to the ownership of water and natural resources more generally. Kenya is endowed with a rich natural resource base, from wildlife, to forests to minerals. However, over the years the management of these resources have neither been sustainable nor beneficial to the entire citizenry. Consequently, the 2010 Constitution sought to respond to the ownership and management question.

Article 62 of the constitution provides that water, as several natural resources, are characterized as public land. This means that the resource is public, its available for and is to benefit all Kenyans. It is vested in National Government, not as owner but as trustee on behalf of the people of Kenya.

Consequently, the debate about ownership between Nairobi county and Muranga County is misplaced. Neither of them owns the water that is in Ndakaini dam and gets pumped to Nairobi. The ownership is, like all public land vested in all Kenyans. Even the National Government cannot purport to claim ownership over that water, because they do not own it. Being a trustee is to be custodian. It gives you powers of control and care, but for the benefit of someone else.

The biggest crisis is one of benefit sharing. The Constitution obligates the state to utilize the environment and natural resources for the benefit of the people of Kenya. Further in that utilization, it is to ensure that the benefits that are derived are shared equitably. Benefit sharing in Kenya was majorly a factor in the wildlife sector, partly due to the large revenues that the sector generated as a result of tourist related activities.

Communities argued that it was unconscionable for them to bear the brunt of being in close proximity to the wildlife, suffering from amongst others, wildlife related conflicts. Mechanisms were consequently put in place to ensure that such communities benefit from the wildlife resources. This was seen especially in protected areas categorized as game reserves, for this allowed minimum human activities within the reserve and more sharing of benefits with the local communities. Maasai Mara is the best example. This arrangement has continued in the era of devolution.

The second are is mineral resources. The discovery of Oil in Turkana and Coal in Kitui brought to public debate the issue of benefit sharing. It is one of the reasons for the delay in finalization of the Petroleum Law and also accounts for the occasional conflicts in Turkana as the exploration and production process proceeds.

This is the context within which the conflicts over water resources between Muranga and Nairobi and now more recently Kajiado and Makueni counties must be seen. The debate is why should counties benefit from mineral resources found in their region while those who are endowed with water resources fail to get similar treatment. It is easy to dismiss these concerns based on the argument that water is a public resource. But so are minerals.

The question of benefit sharing arising from natural resources in light of the advent of devolution is one that must be revisited. In that process a more equitable arrangement will have to be put in place. Such arrangement must avoid insisting on the historical manner in which such resources have been dealt with.

On the other hand, the solution must avoid the tendency of counties where the resources are found, holding the country at ransom and becoming rent-seekers. For resources such as water, their source and journey traverses more than one county.