5. 2 Water Reforms
5.2.3 Public Trust Doctrine and the Commons
Control of water resources and other natural resources in many civil-law countries has been influenced by the public trust doctrine. According this principle, the state is assumed to hold all natural resources including water in trust, on behalf of the general public. Public Trust Doctrine concomitantly envisions that the state, as a trustee, has the responsibility to ensure that public resources are used to realise common goals including fair and equal distribution (Dinar, Rosegrant & Menzein-Dick, nd:12). In orthodox civil law tradition, resources such as water, land, minerals, air, roads and rivers were seen as public goods which should be held in common for all to enjoy, and the state was seem to possess the dominus fluminis (overall rights of control) over these goods including water (Tewari, 2001). It is in this sense that Karl Polanyi sees resources such as land and water as intricate parts of nature to which human beings and society are part and should not therefore be treated as commodities and subjected to the laws of the market (1944:73).
However, the common law tradition, influenced mainly by the riparian law principle129, has converted some of these natural public goods into individual private properties. Often under this system, water rights have been considered as part of the land tenure rights (Hodgson, 2004). Nonetheless, even in common law traditions, there has been a recognition and distinction between private water and public water. For example, in South Africa under the Dutch Company Rule which relied on civil law, though there was a distinction between private and public water, it was made clear that "the Government was
This is a doctrine which gives the right to exploit under-ground water to people with title deeds to land. For instance, a farmer who has a legal title to a piece of land is considered to have the right to extract underground water within the boundary of his or her farm.
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dominus fluminis in regard to flowing water and that it had the absolute right to grant that water to whomsoever it chose" (Tewari, 2001:8). This situation was changed when the British took over and applied common law which favoured private or individual water rights (ibid, 5). Thompson, et al (2001) note that while private water took precedent over public, "[p]ublic water was a source of water
1 ^0
that had a potential for communal use, while private water had limited applications" (11).
Related to the Public Trust Doctrine is the idea of the commons. The concept of the commons is an old principle which can be traced back to the Greek Philosophers Thuclydides and Aristotle. In recent times, the concept has been popularized by Garret Hardin's 1968 article entitled "The Tragedy of the Commons"131. Hardin's essay tries to bring out the dilemma of granting unrestricted access to finite resources like water. In Hardin's view, when individuals are left to make private decisions about the commons,
Each man is locked into a system that compels him to increase his herd132 without limit — in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all(1968:4).
The dilemma arises from the fact that if access to common resources is unregulated, it may happen that some individuals might exploit the resource and eventually endanger other people's access to these common resource. Often, this idea has been used to argue in favour of privatization. But in actual fact, the core message of the "tragedy of commons" is a call for the regulation of access to the commons so that social and environmental objectives can be achieved. And the state has a central role to play in ensuring the realization of these objectives Lessons about the commons can be learnt from traditional African societies who managed resources such as water in common. Even now, there are communities that still manage water resources as a common good. In a comparative study between customary and statutory law in the regulation of water, Nkonya reports that though there are private water sources among the Sukumas,
.. .water is regarded as a common pool resource and should be free for everyone. No one can be denied access to a water source for domestic use regardless of the water source. It does not
In the current integrated water resources management approach, the riparian principle has almost disappeared in many countries, and water rights are strictly assigned by the state. Even where the state has allocated these rights, they are not ownership rights, but the rights to use water or usufruct right (See Hudgson, 2004).
The original idea of the "Tragedy of the Commons" first appeared in 1833 in a pamphlet written by William Forster Lloyd (Hardin, 1968).
Hardin used the hypothetical herdsmen to illustrate the point that if unregulated each herdsman will behave selfishly to increase his gain without paying attention to the condition of the commons.
matter whether the water is from natural or developed or whether the source is situated on private or public land (2006: 56).
On the other side of the dilemma raised by the "tragedy of the commons" is the argument that if something is owned in common there is little care given. This argument also dates back to Aristotle, who argues that,
For that which is common to the greatest number has the least care bestowed upon it. Every one thinks chiefly of his own, hardly at all of the common interest; and only when he is himself concerned as an individual. For besides other considerations, everybody is more inclined to neglect the duty which he expects another to fulfill.... (Wikipedia Encyclopedia, Online)
Over the years, such arguments have been used to provide theoretical justifications for privatization of public goods including water, arguing that unrestricted access leads to waste and is unsustainable. As indicated in Chapter Four, arguments for privatization have been advanced on the basis that privatisation of water services promotes efficient use of resources and avoids unnecessary waste. These arguments have become more articulated during the 1990s when the new wave of water privatization has been raging in many parts of the world (McDonald & Ruiters, 2005; Swyngedouw, 2005).
Commercialisation or privatization of water services has to be seen in this context. In Zambia, commercialization was proposed as one of the major reform programmes to address the challenges of access to water. In 1993, the government set up a commission to study the reorganisation of the water sector (WRM Report, 2003). Based on the findings of the commission assisted by the UK based consultancy company, Water International PLC, it was concluded that commercialization was to be an indispensable component of the water reforms in the country (Cocq, 2005). This recommendation was later reinforced by another British water consultancy company, Severn-Trent, in 2001. As noted earlier, there are various forms of privatisation, but in Zambia commercialization133 was a preferred route.
The difference between privatization and commercialization is often not clear. In most cases commercialization differs from privatization mainly on grounds of asset ownership. Often privatization implies a complete divestiture of assets from public to private ownership while commercialization takes different forms of contract arrangement which include lease, service, management and BOT contracts (See McDonalds & Ruiters, 2005; Bayliss, 2003 for a detailed discussion). In the Zambia case, the commercialization exercise has meant that the Local Authorities still remain the owners of the infrastructure. In the current arrangement the local authorities were envisioned to be shareholders who were expected to partner with the private investors in the commercial utilities. In particular, the Water Supply and Sanitation Act 28 of 1997, has provided for the local authorities to establish water and sanitation utilities as a company, public or private, or as a joint venture with an individual or private enterprise, or as a joint venture with other local authorities (see Section 9 (l)(a)- (c).
However, in all the current 9 CUs the sole capital has come from the local authorities—no private investment has been so far reported. In the case of LWSC, the Lusaka City Council is the sole "shareholder', whereas for NWSC, the shareholders are the constituting local authorities.
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