Aberdare forest is one of the sources of water in Kenya.Photo by KWS

Water Permits and Regulation; The case of The Mt. Kenya Controversial  Abstractions

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In August 2018, Cabinet Secretary for Water and Sanitation, Simon Chelugui, suspended water abstractions from the Mt. Kenya and Aberdare regions for two weeks illegally without following the procedure set out in law for revocation of permits. Though the Cabinet Secretary cited the provision of illegal licences and farmers farming inside the forest and very little water flow downstream despite heavy rains in the year, he erred in law as provided for in the Constitution, relevant Acts and rules as elaborated below.

The Claims by Farmers

Farmers were then to reapply for licences for their irrigation infrastructure. Later on, in September, Leaders in Mount Kenya and Meru county threatened to go to court over what they called “illegal demolitions” of water intakes by the government. This affected access to water in the region and caused water shortages for several weeks. The leaders blamed the Water Resources Authority (WRA) and the Kenya Forest Service (KFS) for failing to conduct a public participation exercise and consulting relevant stakeholders before embarking on the controversial demolitions. The leaders also claimed that licences for the water abstractions had been issued and it was the duty of the government to offer an alternative source(s) before disconnecting. This action was likely to cause losses in millions to the farmers, human starvation and death of livestock.

The Kenya Forest Service was later requested to restore the abstraction after a meeting between The water CS Simon Chelugui , the Environment CS Keriako Tobiko and senators and governors from the Mt. Kenya and Aberdare ranges water catchment areas. There was also an agreement that all abstractions should have flow meters to measure the actual amount abstracted and promote the fair distribution of the resource to all residents and farmers. While the incident is marred by politics, questions on the legal provision for water resource permits arise.

The Law

Conservation of water Resources

The constitution of Kenya, which is the supreme law of the land provides that the responsibility for water resources is vested in the National Government on behalf of the Kenyan People. Part 1 (22) of the Fourth Schedule of the Constitution obligates the national government to promote the protection of the environment and natural resources with a view of establishing a durable and sustainable system of development. Part 2 (10) of the same schedule obligates the county governments to implement national policies on natural resources and environmental conservation which includes water resources. the constitution further places the responsibility of water supply and sanitation on the 47 counties as part county public works and services. Furthermore, the constitution under article 43(d) recognizes access to clean water and sanitation as a basic human right. The water Act 2016 establishes the Water Resources Authority (WRA) which is in charge of issuing water permits among other function. The act also recognizes that water related functions are a shared responsibility between national governments and county governments.

Allocation of permits

Section 9 of the Act provides that everyone has the right to access water resources whose function is the role of the national government as stipulated by the national government. Section 7 goes further to assert that “no conveyance, lease or other instrument shall convey, assure, demise, transfer or vest in any person any property, right, interest or privilege in respect of any water resource except as provided by the act”. This means that all permitting and licencing work must be done in accordance with the act. While section 37 of the act provides for right to access water resources for domestic use without the requirement of a permit, section 26 provide for instances where a permit is compulsory for the use of a permit. These include the drainage of a swamp, discharge of a pollutant into the resource and any other water works that are not included in the act or government regulations.

Application for permits are also required by the act, to go through public consultation and an environmental impact assessment (where applicable). In issuing permits, the authority considers various considerations including the existing lawful uses of the water, the beneficial use of water in public interest, the water resources management strategy, the likely effect of the proposed water use on the resource among other considerations. The nature, degree and amount of water permitted should also consider the needs of other water users of the same resource.

Public consultation requirements are provided for under section 139 of the Water act and include that the authority or designated person should publish the notice in at least one newspaper of national circulation and in at least one radio stations that broadcasts locally. Section 51 further provides that a variation relating to the use of water authorised by the permit; or a term or condition of a prescribed kind, shall not be made without public consultation. This position is further asserted by section 95 which provides that variations to a licence should not be made without public participation. The principle of participation is a fundamental principle enshrined in Article 10 of the constitution Kenya.

Cancellation of Permits

For the cancellation of permits, section 48 provides that a cancellation shall not be valid unless the notice of such cancellation or variation has been served to the permit holder(s) and that they have been accorded a reasonable opportunity to show cause to the authority why such a permit should not be cancelled.  The Water Resources Management Rules (WRM) of 2007 provide for a 30 days period for the permit holder to respond (Rule 43).  Section 48 (3) of the act further provides that a permit holder should be compensated in case of cancellation in accordance with the section and that if there are any disputes arising from the cancellation, they should be dealt with by the water tribunal. Most critical for this case is section 49 which provides that a permit may be cancelled if the permit contravenes the condition of the permit or fails to make proper beneficial use of the water or any part of the resource as determined by the issuing authority. Rule 43 also highlights that the authority should notify the Water Resource Association (WRUA) of the intended cancellation. In order to give effect to the suspension, cancellation or variation of any permit, the Authority may take any appropriate measures for enforcement including the confiscation of equipment or plant, or removal of works

Furthermore, a permit holder who ceases to utilize the water in accordance with the conditions of the permit is required to surrender the permit to WRA. Permit holders are also required to surrender permits where the permits are held irregularly or erroneously or acquired in contravention of relevant regulations. The act further provides that for persons aggrieved with the decision of the water authority should appeal to the Water Tribunal. The residents of the Mt. Kenya and Aberdare regions cited huge losses during the disconnection of the abstractions which they can claim for compensation in a court of law.

By Jennifer Githu