Current Legislation Regulating Water in Namibia
Water scarcity is common to Namibia, being the most arid country in Africa south of the Sahara. The only perennial rivers that can supply Namibia with water to satisfy its development requirements are international perennial rivers bordering Namibia. To ensure an adequate water supply for areas most in need, Namibia follows the broad guidelines of its 1974 Water Master Plan and the 1993 Central Area Water Master Plan. These guidelines demand that the areas adjacent to the perennial rivers must be supplied with water from those rivers.
The perennial rivers are the Kunene, the Okavango, the Kwando-Linyanti-Chobe and the Zambezi in the northern area, and the Orange which forms the southern boundary with South Africa. Since these rivers must be shared with the different neighbouring states, the concept that water resources need to be managed on a regional basis has a long history in Namibia and several technical water commissions have been established between Namibia and its neighbours to this end:
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Permanent Okavango River Basin Water Commission (OKACOM) – agreement between Angola, Botswana and Namibia;
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Orange-Senqu River Commission (ORASECOM) – agreement between Botswana, Lesotho, Namibia and South Africa;
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Permanent Water Commission (PWC) – agreement between South Africa and Namibia;
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Zambezi River Commission (ZAMCOM) – agreement between Angola, Botswana, Malawi, Mozambique, Namibia, Tanzania and Zimbabwe; and
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Permanent Joint Technical Commission (PJTC) and the Joint Operating Authority on the Kunene River – agreement between Angola and Namibia.
What is of interest though is that currently there is no overarching piece of legislation in Namibia that would regulate the utilisation of waters from these perennial rivers. This is left to a number of bi-lateral agreements discussed below
Water Act 54 of 1956
The use of water in Namibia is currently regulated by an outdated piece of South African legislation, namely the Water Act, Act No. 54 of 1956. Since only particular sections have been made applicable to Namibia, it is unsuited for the regulation of the utilisation of transboundary water resources. The Act contains no provisions to this effect and has simply the objective : ”To consolidate and amend the laws relating to the control, conservation and use of water for domestic, agricultural, urban, and industrial purposes; to make provision for the control, in certain respects, of the use of sea water for certain purposes; for the control of certain activities on or in water in certain areas; for the control of activities which may alter the natural occurrence of certain types of atmospheric precipitation; for the control, in certain respects, of the establishment or the extension of township in certain areas; and for incidental matters”.
Himba women in the Namibian part of the Kunene basin.
Source: © Ostby 2007 www.pgoimages.com
( click to enlarge )
Namibia Water Corporation Act, 1997
The Namibia Water Corporation Act (Act 12 of 1997) established the entity that would be responsible for the management of water in Namibia. As per its website, “the Namibia Water Corporation Ltd. (NamWater) was officially registered as a company on 9 December 1997. It is a commercial entity supplying water in bulk to industries, municipalities and the Directorate of Rural Water Supply in the Ministry of Agriculture, Water and Forestry. The latter supplies water to rural communities.
The Namibian Government is the sole shareholder, represented by the Minister of Agriculture, Water and Forestry, who appoints the Board of Directors to ensure the efficient resource utilisation. Even though the company strives to recover the full cost of water supply, NamWater is committed to providing its customers with a reliable source of quality water at the lowest possible rates (NamWater website 2010)”.
The functions of the Corporation are to:
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Explore, develop, and manage water resources for the purpose of water supply;
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Acquire, plan, design, construct, extend, alter, maintain, repair, operate, control, and dispose of water works;
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Subject to Section 7 and notwithstanding any provisions of the Water Act to the contrary, supply water to customers within and outside the borders of the Republic of Namibia;
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Investigate, research, and study matters relating to water resources, waterworks and the environment
For NamWater to fulfil its responsibilities, all assets and liabilities of the former Department of Water Affairs that dealt with bulk water supply in Namibia, were transferred to the Corporation (Section 34). In the same section, Article (6) states that “any contractual rights, liabilities and obligations held by or on behalf of the Department in respect of the waterworks referred to in the Schedule, or relating to the function of bulk water supply, and in force at the transfer date, shall with effect from such date vest in the Corporation".
The Schedule referred to above is the “List of Waterworks transferred to the Corporation” which is an annexure to the Namibia Water Corporation Act, 1997. According to this Schedule NamWater is responsible to manage, in its broadest sense, the water supply from Calueque to the Olushandja Dam (including the purification plant), and from Olushandja to Ongongo (purification plant). From Ongongo, the water is distributed via a canal or pipeline to Okahao, Okalongo, Oshakati, Omakango, Omapale, and Ondangwa. The water is then distributed from Ondangwa to Omutsegwomine and Oshikango, with all bigger settlements in between being supplied with water as well (See Bulk Transfer Schemes).
Pending Water Legislation: Water Resources Management Act
Namibia does not have an overarching framework to regulate water resources. As shown above there are several tools (acts and agreements) and institutions (Ministry of Agriculture, Water and Forestry, NamWater, NamPower, PJTC) that deal with the water question and, in order to streamline this important resource, the Water Resources Management Act, Act 24 of 2004, was promulgated. However, although this act was assented to on 8 December 2004, and was signed by the President, the date of commencement still has to be proclaimed.
The objective of the Act (Section 2) is “to ensure that Namibia’s water resources are managed, developed, protected, conserved and used in ways which are consistent with or conducive to the fundamental principles as set out in Section 3”. Paragraph (m) of Section 3 is of particular importance concerning shared water resources in that the Act must be interpreted, and be reasonably and fairly applied, in a manner that is consistent with and promotes Namibia’s “international obligations and promoting respect for Namibia’s rights with regards to internationally shared water resources and, in particular, to the abstraction of water for beneficial use and the discharge of polluting effluent”.
The Minister responsible for Water is tasked to participate in consultations and negotiations regarding shared water resources (Section 5 (c)) and he/she may also establish basin management committees (Part IV). The Basin Management Committees must prepare a Water Resources Plan which will then be taken up in the National Water Master Plan (Part VI).
Part X of the Act deals with Internationally Shared Watercourses and Section 53 states that Namibia, in its dealings with neighbouring states:
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Exercises its rights, and observes and complies with all its duties as conferred and imposed upon it by any international treaty, convention or agreement to which it is a signatory; and
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Must uphold such principles and rules of customary international law as are accepted and observed by all nations and as are reflected in:
While Section 55 deals with the collection of data concerning internationally shared watercourses, it is Section 54 that is of particular importance. This section deals with powers and functions of the Minister in relation to internationally shared water resources and it gives him/her the right to, inter alia:
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Engage in the joint management, planning, and development of joint projects with other basin states within the Southern Africa Development Community for the purpose of promoting economic growth, environmental integrity and common understanding;
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Establish and promote institutional relationships between river basin organisations within Namibia and international river basin organisations;
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To establish mechanisms, or participate in the re-establishment of mechanisms, for the prevention, management and resolution of disputes relating to internationally shared water resources.
Once this Act has been commenced the old Water Act, as amended, will be repealed in its totality.
