New publication: Decolonising Peasants’ Marginalisation in African Water Law, by Barbara Van Koppen, Barbara Schreiner and Pinnie Sithole. Issue 26/2 of the Journal of Water Law, Lawtext Publishing, 2019.
After describing customary water rights in selected African countries and the water allocation systems introduced by colonial rulers, and their evolution, this article highlights both the injustices that the colonial legacy of permit systems creates for peasants and the administrative overloads that these systems currently pose on states. A new hybrid approach to water law appropriate to the African context is proposed, both to end the criminalisation and marginalisation of the large numbers of peasants using water under customary law, and to enable states with limited capacities to focus on the smaller number of high-impact water users where regulation and avoidance of conflicts between statutory and customary water law is most warranted. Among the issues to be addressed, there is the need for equal legal standing of entitlements of those using water under formal legal systems and those using water under customary law, and the option for prioritisation in line with constitutional requirements. Without superior entitlements but with strict procedural requirements, permits can become regulatory tools that are well targeted to the (relatively few) large-scale water users who (potentially) have the strongest negative impacts on other water users and on aquatic ecosystems. These include foreign investors in large-scale agriculture-based land acquisitions.