**3.1.2 Description of the water management institutions**

The minister causes the formulation of National Water Resources Management (NWRSMS), through public consultation. The strategy is based on the data obtained from the National

monitoring and Information Systems on water Resources (NMISWR). The body that formulates the strategy is the Water Resources Management Authority, (WRMA).The membership to this board are all appointees of the minster except the Chairman who is appointed by the president. This is the state agent that is charged with the governance of water resources. WRMA has its regional agencies called Catchment Area Advisory Committees (CAACs) which takes care of the designated catchment areas.

All the 15 members of each CAAC is appointed by WRMA in consultation with the minister. The membership is drawn from the following:


220 Current Issues of Water Management

under this part include the Ministry (Minister), Water Resources Management Authority (WRMA), Water Appeal Board (WAB) and the Catchment Area Advisory Committees (CAACs) while the instruments include the National Water Resources Management Strategies (NWRMS), National Monitoring and Information System on Water Resources (NMISWR), Catchment Management Strategy (CMS), permits and appeals. The institutional

Fig. 1. Government's schematic representation of the institutional framework resulting from

The body that formulates the strategy is the Water Resources Management Authority, (WRMA). WSRB registers or licences WSPs in each WSB. WRMA has its regional agencies called Catchment Area Advisory Committees (CAACs) which takes care of the designated catchment areas. The CAAC's key function is to advise their respective WRMA regional

It is on this basis that WRMA shall issue or cancel permit for water use by a WSP. Water Appeals Board (WAB) hears appeals from mostly non state actors that have been aggrieved by action of some state actors in water governance and usage. The non-state actors are usually represented at the local level by Water Resources Users' Associations

water management framework in Kenya is as presented in the figure below:

Source: Republic of Kenya (2007)

• water resource conservation, use and apportionment,

• the grant, adjustment, cancellation or variation of any permit and,

• any other matters pertinent to the proper management of water resources.

the Water Act of 2002

office on:

(WRUA's).


Each CAAC is supposed to develop its Water management strategy which is expected to:


The CAAC's key function is to advise their respective WRMA regional office on: water resource conservation, use and apportionment; the grant, adjustment, cancellation or variation of any permit; and any other matters pertinent to the proper management of water resources. It is on this basis that WRMA shall issue or cancel permit for water use.

The Water Appeals Board (WAB) at the national level comprises a membership of a chairman who is appointed by the President and two members appointed by the minister. The main function of WAB is to hear appeals from mostly non state actors that have been aggrieved by action of some state actors in water governance and usage. The non state actors are usually represented at the local level by Water Resources Users' Associations (WRUA's).

In as much water services provision appear separate from and parallel to water resources management at face value, in actual sense, they are so intertwined in the water governance set-up to the extent that they in terms of operations, have to go hand in hand. The Ministry at national level formulates policies for the institutions of Appeals board, Water services Trust Fund, and also Water Resources management Strategy. The policies so formulated are implemented through the Regulatory agencies like WRMA and WSRB, each having regional

Public Private Partnerships in the Privatization of Water Service Delivery in Kenya 223

management of water and development should be based on participatory approach of governance involving users, planners, and policy makers at all levels. The implication is that decision making involving water projects is made with full involvement and public consultation of all users in the implementation process. It is in this respect that the water reforms in Kenya, envisaged role will be performed by WRMA through its regional agency

A WRUA is an association of water users, riparian land owners, or other stakeholders who have formally and voluntarily associated for the purposes of cooperatively sharing, managing and conserving a common water resource (Definition in WRM Rules 2007). A WRUA is an association of water users, riparian land owners, or other stakeholders who have formally and voluntarily associated for the purposes of cooperatively sharing, managing and conserving a common water resource (Definition in WRM Rules 2007).Has this been effectively done? What implication does this have on WSPs? If this is done what impact does it have on independent small scale water providers? Is the process tenable and at what cost? Can the small independent water service providers afford the process and at

Sessional paper No. 1 of 1999 on Water Resources Management and development provides policy guidelines with four broad objectives addressing both water resources management

a. Preserve, conserve and protect water resources and allocate them in a rational,

1. To advocate for an integrated water resource management strategy that can address the

2. It clarifies the role of the government as a regulator and a manager of water resources, the public and private sectors as co-providers of water services; and community as

3. It proposes that water catchment area committees should be the water planning and management units that s should be formed to serve as principle advisors on water

4. It calls for separation of water service delivery functions from the water resources

5. It recommends volumetric fees for water abstraction, and adopts a "Polluter Pays

WRMA created under section 7, while maintaining the above principles in pursuit of the stated objectives, was expected to further develop guiding principles and guidelines for water resource allocation, regulate water resource quality, manage water catchments and determine charges to be imposed on use of water from any source. Section 46 of the same Act creates WSRB to license water service providers, handle consumer complaints against licensees; develop guidelines for fixing water tariffs; and develop model agency agreements

c. Set up an effective institutional framework for water resource management and

of CAAC and the grass root level representatives in the name of WRUA.

what cost? If not, is it not impacting negatively on the water service provision?

b. Supply quality water in sufficient quantities to meet various needs,

allocation decisions to enhance transparency and accountability.

and service delivery to:

sustainable and economic manner,

d. Develop water sector financing system.

The policy developed five principles:

multiple water needs and uses.

contributors to water resource management.

regulatory and management functions.

Principle" to control pollution.

authorities in the names of CAACs and WSBs, respectively. CAACs and WSBs are also service providers at the regional levels, while WRUAs and WSP at service providers at the local level.

One of the objectives of the National Water Services Strategy is: "…to institute arrangements to ensure that at all times there is in every area of Kenya a person capable of providing water supply."(Republic of Kenya, 2002). This is meant to ensure that no area is left without a water supply Programme. The strategy would contain details such as existing water services; the number and location of persons who are not being provided with basic water supply; a plan for the extension of water services to under-served areas; a time frame for the plan and an investment programme. In the set up to achieving the objective, the government has set up contingency plans to enhance accessibility of water to all. These include; trust funds, social tarification, contractual clauses and alternative water providers.

Section 83 of the 2002 Water Act makes provision for the establishment of the Water Services Trust Fund. Funding is expected from the three principal sources: parliamentary appropriations, donations/grants/bequests and statutory payments. The objective of the fund is to help finance water provision in areas of Kenya without adequate water services. The trust fund will receive development money from the government as budgetary allocations, and it may also get money from taxing water users or providers. The money can then be used to finance investments to provide water for the poor and to neglected areas.

Social tarification refers to charging a "social" rather than a commercial tariff. It is a policy instrument that may be used to ensure that the poor get water in instances where charges based on full cost-recovery would be too expensive. It works for those poor citizens who are connected to the main water network but who may otherwise not be able to afford the market price. Contractual clauses or conditionality's as well as specifying tariffs in the contract. It is also possible to specify that part of the performance of the contract includes extending the water network to an area which is either not served or underserved – for instance, to informal settlements or peripheral communities. If such conditions are not adhered to, a breach would be implied and the licence could be withdrawn. The Water Services Regulatory Board will be in charge of supervision. The board is also mandated to take action against the licensee, which includes withdrawal of the licence.

In perspective, water services provision and water resources management are intertwined in the water governance set-up, in terms of operations, and have to go hand in hand. The Ministry at national level formulates policies for the institutions of Appeals Board, Water Services Trust Fund, and also Water Resources Management Strategy. The policies so formulated are implemented through the Regulatory agencies like WRMA and WSRB, each having regional authorities in the names of CAACs and WSBs, respectively. CAACs and WSBs are also service providers at the regional levels, while WRUAs and WSP are service providers at the local level.

### **3.2 Popular participation and governance of water services**

Like other countries in the world, water governance policy is premised upon the Dublin statement on sustainable water and development principle number 2 stating that the management of water and development should be based on participatory approach of governance involving users, planners, and policy makers at all levels. The implication is that decision making involving water projects is made with full involvement and public consultation of all users in the implementation process. It is in this respect that the water reforms in Kenya, envisaged role will be performed by WRMA through its regional agency of CAAC and the grass root level representatives in the name of WRUA.

A WRUA is an association of water users, riparian land owners, or other stakeholders who have formally and voluntarily associated for the purposes of cooperatively sharing, managing and conserving a common water resource (Definition in WRM Rules 2007). A WRUA is an association of water users, riparian land owners, or other stakeholders who have formally and voluntarily associated for the purposes of cooperatively sharing, managing and conserving a common water resource (Definition in WRM Rules 2007).Has this been effectively done? What implication does this have on WSPs? If this is done what impact does it have on independent small scale water providers? Is the process tenable and at what cost? Can the small independent water service providers afford the process and at what cost? If not, is it not impacting negatively on the water service provision?

Sessional paper No. 1 of 1999 on Water Resources Management and development provides policy guidelines with four broad objectives addressing both water resources management and service delivery to:


The policy developed five principles:

222 Current Issues of Water Management

authorities in the names of CAACs and WSBs, respectively. CAACs and WSBs are also service providers at the regional levels, while WRUAs and WSP at service providers at the

One of the objectives of the National Water Services Strategy is: "…to institute arrangements to ensure that at all times there is in every area of Kenya a person capable of providing water supply."(Republic of Kenya, 2002). This is meant to ensure that no area is left without a water supply Programme. The strategy would contain details such as existing water services; the number and location of persons who are not being provided with basic water supply; a plan for the extension of water services to under-served areas; a time frame for the plan and an investment programme. In the set up to achieving the objective, the government has set up contingency plans to enhance accessibility of water to all. These include; trust

Section 83 of the 2002 Water Act makes provision for the establishment of the Water Services Trust Fund. Funding is expected from the three principal sources: parliamentary appropriations, donations/grants/bequests and statutory payments. The objective of the fund is to help finance water provision in areas of Kenya without adequate water services. The trust fund will receive development money from the government as budgetary allocations, and it may also get money from taxing water users or providers. The money can then be used to finance investments to provide water for the poor and to neglected

Social tarification refers to charging a "social" rather than a commercial tariff. It is a policy instrument that may be used to ensure that the poor get water in instances where charges based on full cost-recovery would be too expensive. It works for those poor citizens who are connected to the main water network but who may otherwise not be able to afford the market price. Contractual clauses or conditionality's as well as specifying tariffs in the contract. It is also possible to specify that part of the performance of the contract includes extending the water network to an area which is either not served or underserved – for instance, to informal settlements or peripheral communities. If such conditions are not adhered to, a breach would be implied and the licence could be withdrawn. The Water Services Regulatory Board will be in charge of supervision. The board is also mandated to

In perspective, water services provision and water resources management are intertwined in the water governance set-up, in terms of operations, and have to go hand in hand. The Ministry at national level formulates policies for the institutions of Appeals Board, Water Services Trust Fund, and also Water Resources Management Strategy. The policies so formulated are implemented through the Regulatory agencies like WRMA and WSRB, each having regional authorities in the names of CAACs and WSBs, respectively. CAACs and WSBs are also service providers at the regional levels, while WRUAs and WSP are service

Like other countries in the world, water governance policy is premised upon the Dublin statement on sustainable water and development principle number 2 stating that the

funds, social tarification, contractual clauses and alternative water providers.

take action against the licensee, which includes withdrawal of the licence.

**3.2 Popular participation and governance of water services** 

local level.

areas.

providers at the local level.


WRMA created under section 7, while maintaining the above principles in pursuit of the stated objectives, was expected to further develop guiding principles and guidelines for water resource allocation, regulate water resource quality, manage water catchments and determine charges to be imposed on use of water from any source. Section 46 of the same Act creates WSRB to license water service providers, handle consumer complaints against licensees; develop guidelines for fixing water tariffs; and develop model agency agreements

Public Private Partnerships in the Privatization of Water Service Delivery in Kenya 225

participate in the market. The procedures of Water Reforms Act 2002 despite making attempts to enhance popular participation in the water governance, resource management and development, have been discouraging to small entrepreneurs. The process to be recognized as a WSP is lengthy and expensive for small scale water suppliers. Before a permit is issued, a water user submits application to WRMA, go through the technical assessment and public notification processes. It is after then that authorization for construction is issued and a certificate of completion thereafter. It is then that a permit for

The effort to enhance public participation in the governance of water service provision and management of water resources is merely impressionistic and not easy to sequence practically. WRMA is not bound by decisions of CAAC which equally is not bound by recommendations of WRUA. None of the institutions are representative of the other's interest. Secondly, WRUA as is presently constituted, is a club and not a representative of water users in any particular Zone. Membership is through individual interests implying that there are so many stakeholders who could be left out because they have not indicated

Several small scale water service providers would therefore be easily blocked from accessing

Another area of concern is the role overlap between WRMA and WSRB since both have powers under the Water Act 2002 to determine water charges. Section 73 of the same Act also allows licensees including WSBs to determine water service tariffs hence the argument by Asingo (2007) that it is WSP which knows the cost to be recovered and hence should be the one to fix water tariffs in consultation with WSBs and WSRB. Ministry of local governments' role in provision of Water services has been reduced to obscurity as private water companies are expected to work very closely with the Ministry of Water Development, yet in practice they control the provision of services by virtue of being the

It can therefore be deduced that the results of any water supply service provision will depend on the interrelationships between the state, regulators, citizens as consumers of the services taking into account multi-dimensional interactions amongst the parties. In this respect the government's regulatory framework should be facilitative rather than controlling of small scale water service providers. For example, it is against market principles to place one player (Large Scale Water Service Providers) at an advantaged position so as to be not only a supervisor of a competitor (Small Scale Water Service Providers) at a cost, but also be

water provision is issued.

interest to join the WRUA.

permits due to conflict of interest with WRUA members.

largest shareholders in the Public Limited Companies.

the one to recommend its registration.

**5. List of abbreviations and acronyms**  ADB African Development Bank AFD French Agency for Development CAAC Catchment Area Advisory Committees DANIDA Danish International Development Agency DFID Department for International Development ELDOWAS Eldoret Water and Sewerage Company

between local authorities and private water companies. Section 51 of the Act creates Water Service Boards (WSBs)whose main role is to ensure efficient and economic provision of water services. To do this, they are to enter into agency agreements with water providers, mainly private water companies and community Project Water Cycles.

The Water Act 2002 requires stakeholder participation around; 1. Public and stakeholder consultation in developing the NWRMS, CMS and Protected Areas; and 2.Public consultations in matters of water resource allocation. In all the WSBs in Kenya, there are various mechanisms for stakeholder consultation. These include formal institutional arrangements (CAAC) public notification, through newspapers and public announcements. However, the interaction with the WRUAs goes beyond just public consultation, but seeks to enhance participation of primary beneficiaries, the water users. Section 5.7 of the Water Act 2002 states that "WRMA shall endeavour to support WRUAs". In this respect provision shall be made to enable them to access the funds provided by the WSTF for management and development within their areas of jurisdiction".

Essentially the CAAC is one way in which stakeholders can participate and influence water resource management within catchment areas. However, The Water Act 2002 states that the role of CAACs should be *advisory*. This implies that WRMA is not bound by decisions of the CAACs, and that authority and responsibility of decisions remains squarely with WRMA. This therefore contradicts the presumed purpose of popular participation. CAAC is also not mandated to abide by the resolutions of WRUA. Furthermore WRUA is not a representative association of the people in a catchment but a club of interested stakeholders. It is worth noting that CAACs are not intended to be representative of individual water users of a particular area but rather of stakeholder groups. Essentially there is no direct relationship between a water user and a CAAC member. CAAC members are appointed by WRMA, so it is up to WRMA to make sure that CAAC members are genuinely *representative* of the respective stakeholder groups. It is worth noting that WRUAs are not specifically mentioned as one of the stakeholder groups to be included in the CAAC, although Section 16(3)(f) provides a clause that can be used to include competent WRM individuals who could arguably be drawn from the WRUAs. The official interaction from WRMA down to WRUA appears non binding.
