“Water Wars”: Legal Pluralism And Hydropolitics In Namibian Water Law

Abstract

Namibia is the driest country in the SADC Region. Conflicts and multifarious questions about water are manifest. Central to the enquiry on water law in Namibia is the question as to who owns water in Namibia and what the implications are of the environmentally sensitive water law reforms introduced by Namibia. Research on miscellaneous issues under these two major themes was based on both empirical or field research and desk research. This required a combination of quantitative and qualitative research, analysed through a legal plurality conscious approach incorporating general inductive data analysis. This method led to the conclusion that although the state creates a public trusteeship principle under the Constitution in regard to the ownership of natural resources, the communities on the ground, at least those in the three studied regions of Kavango, Otjozondjupa and Ohangwena, regard themselves as the owners of water as opposed to the State. The majority of rural communities ascribe to their local environmental laws that they own the water in their locality, and the 2004 Water Act contains certain reforms which are not acceptable to them; hence the legislature has to reckon legal pluralism in the legislative process. Compounding legal pluralism are the problems created by the national programme of decentralisation and the interactive politics of water institutions in the studied regions, which has created unhealthy hydropolitics among government institutions, and hence a negative effect on the right to water of rural communities. Consequently there is a negative impact on the sustainable water utilisation in the studied regions. The study concludes that the government has to put its environmental law house in order, so that water rights and other environmental rights associated with water utilisation by its populace can be realised. There is in turn, need for vociferous review of the 2004 Act in this context.