Water governance, not new dams, holds key to Kenya’s water future

Kenya's pursuit of water security hinges critically on strengthening its water governance systems rather than solely investing in new infrastructure. This perspective, highlighted during a high-level dialogue on Basin Water Resource Committees (BWRCs), underscores the persistent gap between robust legal frameworks and their effective implementation. Stakeholders emphasized that while the Water Act, 2016, provides a strong foundation, challenges such as inadequate financing, political interference, and institutional conflicts impede the full operationalisation of BWRCs. These committees are vital for integrated water resources management, equitable allocation, conflict resolution, and community participation, making their effective functioning paramount for Kenya's long-term water future and climate resilience.

Kenya faces a perennial challenge in ensuring water security for its growing population and economy. Despite significant investments in water infrastructure over the years, access to clean and safe water remains uneven, with a substantial portion of the population lacking reliable access. This persistent gap has prompted a critical re-evaluation of the nation's approach to water management, shifting the focus from mere infrastructure development to the more fundamental issue of governance.

A recent high-level dialogue on Basin Water Resource Committees (BWRCs) brought this imperative into sharp relief. Stakeholders, including government officials, county administrations, civil society, and development partners, converged to assert that Kenya's water future depends less on constructing new dams and more on rectifying systemic governance failures. The consensus was clear: effective management, allocation, and protection of water resources are contingent upon robust, transparent, and accountable governance mechanisms, with BWRCs positioned as crucial instruments in achieving this objective. This article will delve into Kenya's water governance framework, examining the role of BWRCs and the legal and practical challenges hindering their effectiveness, ultimately arguing that their full operationalisation is indispensable for sustainable water security.

The right to clean and safe water in adequate quantities is enshrined as a fundamental human right in Article 43(1)(d) of the Constitution of Kenya, 2010. This constitutional mandate places a positive obligation on both national and county governments to take proactive steps towards universal access. The primary legislative instrument governing water resources in Kenya is the Water Act, 2016, which repealed and replaced the Water Act, 2002. The 2016 Act was a significant reform, aiming to align the water sector with the constitutional principles of devolution and to separate water resources management from water and sanitation service delivery.

Under the Water Act, 2016, the national government holds water resources in trust for the people of Kenya, with the Water Resources Authority (WRA) established under Section 11 as the key state corporation mandated to regulate and manage these resources. The WRA's functions include formulating and enforcing standards, regulating water use, issuing permits, and coordinating with other bodies for effective management. Crucially, the Act also provides for the establishment of Basin Water Resource Committees (BWRCs) and Water Resource Users Associations (WRUAs). WRUAs are community-based associations formed along rivers, facilitating local participation in water management decisions and conflict resolution. BWRCs, formerly Catchment Areas Advisory Committees (CAACs) under the 2002 Act, are committees of the WRA whose members are drawn from stakeholders within the basin, intended to achieve wide stakeholder participation in water resource management at the basin level.

Despite the robust legal and institutional framework established by the Water Act, 2016, and the constitutional recognition of water as a human right, Kenya continues to grapple with significant water governance challenges. The recent dialogue underscored a persistent gap between policy design and execution, with weak institutional coordination undermining access to reliable water. Key issues identified include inadequate financing, political interference, and structural and governance challenges that threaten the sustainability of reforms.

Basin Water Resource Committees (BWRCs) are envisioned as central to integrated water resources management, playing a critical role in water allocation, conflict resolution, permit processes, and equitable sharing of resources among users within river basins. However, their full operationalisation has been hampered by legal and institutional conflicts. The Water Resources Authority (WRA) Chief Executive Officer, Mohammed Shurie, noted that BWRCs were initially assigned both advisory and implementation functions, creating governance overlaps that necessitated legislative amendments. Amendments to the Water Act have reportedly been submitted to Parliament to clarify these mandates and accelerate implementation.

Furthermore, the devolution of water service provision to county governments, while constitutionally mandated, has introduced complexities. Challenges at the county level include financial constraints, capacity issues, weak governance, inadequate infrastructure, and poor coordination with national authorities. This often leads to a disconnect between policymakers and communities, with public participation, though constitutionally mandated, frequently falling short in practice. The effectiveness of WRUAs, which are crucial for grassroots engagement, is also impacted by challenges such as poor governance and capacity needs.

Case law in Kenya has affirmed the constitutional right to water. For instance, in *Ibraham Sangor Osman v AG (Constitutional petition No. 2 of 2011)*, the High Court determined that the government violated the right to clean and safe water, among other socio-economic rights, for individuals evicted from their land. This case highlights the judiciary's role in enforcing the state's obligation to ensure access to water. However, the practical enforcement of such rights still faces systemic hurdles, particularly concerning pollution from industries and infrastructure projects, despite robust environmental laws. The ongoing legal reforms and emphasis on strengthening BWRCs aim to bridge these implementation gaps, ensuring that the legal framework translates into tangible improvements in water security and equitable access.

Kenya's journey towards comprehensive water security is at a pivotal juncture, demanding a strategic shift from a singular focus on infrastructure development to a more holistic emphasis on robust water governance. The consensus among stakeholders is clear: the effective operationalisation of Basin Water Resource Committees (BWRCs) is not merely an administrative detail but a fundamental pillar for achieving sustainable water management, equitable allocation, and climate resilience. Addressing the identified challenges of inadequate financing, political interference, and institutional clarity through ongoing legislative amendments and strengthened intergovernmental collaboration is paramount.

For legal practitioners, this evolving landscape presents both challenges and opportunities. Advising clients on water-related projects now requires a deeper understanding of the intricacies of the Water Act, 2016, the mandates of the Water Resources Authority (WRA) and BWRCs, and the critical importance of community engagement through WRUAs. Due diligence must extend beyond permit acquisition to encompass the broader governance risks, including potential for water use conflicts and the implications of weak enforcement. Practitioners should closely monitor the progress of the Water Act amendments and the implementation of strategies aimed at strengthening BWRCs, as these developments will significantly shape the legal and regulatory environment for water resources in Kenya. The future of Kenya's water security will ultimately be determined by the collective commitment to translate progressive legal frameworks into effective, accountable, and participatory governance in practice.