Roman Water Law in Rural Africa: Dispossession, Discrimination and Weakening State Regulation?

Abstract

"The recent water law reforms in Africa, Latin America and elsewhere strengthen permit systems. This water rights regime is rooted in Roman water law. The European colonial powers introduced this law in their colonies, especially in Latin America and later also in Sub-Saharan Africa. By declaring most waters as being public waters, they vested ownership of water resources in their overseas kings. This dispossessed indigenous peoples from their prior claims to water, while the new formal water rights (or permits) were reserved for colonial allies. At independence, ownership of water resources shifted to the new governments but the nature of the water laws, including the formal cancellation of indigenous water rights regimes as one of the plural water rights regimes, remained uncontested. This colonial legacy remained equally hidden in the recent reforms strengthening permit system. Based on research on the new permit systems in a context of legal pluralism in Tanzania, Mexico, South Africa, Ghana, Mozambique and elsewhere, this paper addresses two dilemmas. The first is: how can the dispossession and discrimination be reverted by recognizing and even encouraging informal water self-supply since time immemorial to meet basic livelihood needs by millions of small-scale water users? The second dilemma, which prevails in Sub- Saharan Africa, but less in Latin America, is: can permit systems become effective regulatory tools to combat water over-use and pollution, collect revenue, and, where historical justice warrants, to re-allocate water from the haves to the have-nots, as South Africa’s water law aims? The paper provides evidence and best practices on, first, how the state can recognize legal pluralism and informal water rights regimes, and, second, how state regulation can only become effective through lean and targeted measures, so without nation-wide permits."