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11 Coping with History and Hydrology: how Kenya's Settlement and Land

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11 Coping with History and Hydrology: how Kenya’s Settlement and Land Tenure

Patterns Shape Contemporary Water Rightsand Gender Relations in Water

Leah Onyango,1 Brent Swallow,2 Jessica L. Roy and Ruth Meinzen-Dick3

1Department of Urban and Regional Planning, Maseno University, Maseno, Kenya; e-mail: leahonyango@yahoo.com; 2Environmental Services, World AgroforestryCentre, Nairobi, Kenya; e-mail: B.Swallow@cgiar.org; 3International Food Policy

Research Institute (IFPRI), Washington, DC, USA; e-mail: r.meinzen-dick@cgiar.org

Abstract

Like many other African countries described in this volume, Kenya has recently enacted several new policiesand public-sector reforms that affect its water sector. This chapter considers those reforms in the context of thecountry’s particular history of land tenure and settlement, a history that continues to have a profound influenceon contemporary patterns of land and water management as well as on gender relations in water. The chapterfocuses on the particular case of a river basin in Western Kenya, the Nyando river basin (3517 km2), that hasits outlet in Lake Victoria. Over the last century, the Nyando river basin has experienced a history that hasshaped spatial patterns of land tenure, settlement and water management. The plural land managementsystems that exist in the basin today are the product of three distinct periods of historical change: (i) the pre-colonial era that was dominated by customary landholding and land rights systems; (ii) the colonial era inwhich large areas of land were alienated for specific users and the majority of the Kenyan population confinedto native reserve areas; and (iii) the post-colonial era that has encouraged large-scale private ownership of landby men and a small public-sector ownership of irrigation land, all against the backdrop of customary norms andthe colonial pattern of settlement and land use. Both colonial and post-colonial institutions have largely disre-garded women’s rights to land and water resources. Although customary norms are consistent in ensuringaccess to water for all members of particular ethnic groups, in practice access and management of water pointsvary across the basin depending upon the historically defined pattern of landownership and settlement.Customary norms that secure the rights of women to water resources tend to have most impact in former nativereserve areas and least impact in ethnically heterogeneous resettlement areas held under leasehold tenure.Recommendations are made on how new policies, legislation and government institutions could be more effec-tive in promoting the water needs of rural communities in Kenya.

Keywords: legal pluralism, land tenure, water tenure, gender roles, integrated natural resources manage-ment, property rights, policy framework, community participation.

© CAB International 2007. Community-based Water Law and Water Resource ManagementReform in Developing Countries (eds B. van Koppen, M. Giordano and J. Butterworth) 173

Introduction

Like many other African countries, Kenya hasrecently enacted new policies and legislationregarding its water resources sector. Reforms ofthe institutions that govern water supply andwater resources management were still inprogress as of 2005, with new boards andauthorities coming to grips with their responsi-bilities. The Water Act, 2002 was founded onmodern principles of integrated water resourcesmanagement, empowering water user associa-tions and basin authorities with responsibilityfor managing water resources and regulatingwater service providers for efficient, equitableand sustainable use of water.

The Water Act appears to be based on thefollowing propositions: (i) that land and watermanagement are quite distinct areas of admin-istration and governance; (ii) that customaryinstitutions have little influence over contempo-rary patterns of governance; (iii) that formaladministrative structures for water managementwill be able to have a large influence over landmanagement that affects water resources; and(iv) that private sector and large-scale non-governmental organizations (NGOs) willreplace the government as the main supplier ofwater services. This chapter considers thesepropositions for the particular case of theNyando basin in Western Kenya. While repre-senting relatively small portions of Kenya’s landand water resources, the Nyando basin displaysa surprising level of diversity. Historicalprocesses of settlement and land tenure changehave resulted in contemporary differences inland and water management.

Three strands of literature influence theapproach taken in this research. The first is thehistorical and evolutionary approach to prop-erty rights and institutional change promotedby institutional economists such as North(1990). By that theory, property rights changeis a continual, path-dependent process influ-enced by a confluence of external and internalforces – forces based on political, social andeconomic power. The second strand of litera-ture is the theory of legal pluralism promoted bylegal anthropologists. In a nutshell, legal plural-ism proposes that de facto property rights arealways affected by multiple sources of legal,social and political authority, including custom-

ary and religious law, local norms and evenproject regulations. All of these frameworks canbe the basis for claims over land, water andtrees. Access to, and control over, water andother resources are thus the outcome of theinterplay between these different types ofclaims, the negotiation processes that takeplace and the relative bargaining power ofdifferent claimants.

The third strand that influences thisresearch, often associated with political ecology,is generally based on the premise that contem-porary patterns of resource use and manage-ment are embedded in historical processesinvolving competing and cooperating socialactors. Cline-Cole (2000) describes a landscapeas a ‘produced, lived, and represented spaceconstructed out of the struggles, compromisesand temporary settled relations of competingand cooperating social actors’. This strand ofliterature is firmly grounded in historical studiesof the African landscape, such as those under-taken by Fairhead and Leach (1996), Cline-Cole (2000) and Ashley (2005).

This chapter draws information from theSafeguard project, ‘Safeguarding the rights ofthe poor to critical water, land and treeresources in the Nyando River basin in WesternKenya’.1 This chapter also synthesizes informa-tion from the Safeguard project regarding thedistinct histories of land management andsettlement that have unfolded across theNyando basin and how these histories shapecontemporary water rights and gender relationsto water. Conclusions are drawn on the ways inwhich formal water management authoritiescan take better account of those local realities toimprove water quality and water access in ruralKenya.

The chapter begins by introducing the historyand hydrology of the Nyando basin, followed bya brief discussion of the methods used in theSafeguard project. It then provides an examina-tion of the evolution of land tenure in theNyando basin from the pre-colonial Kenyaperiod to the present day, highlighting the chang-ing property rights over time and space. Genderrelations over water are examined at both house-hold and community levels in the context ofcontemporary property rights and legal plural-ism. The chapter concludes by proposing waysof integrating natural resources management at

174 L. Onyango et al.

all levels as a way of improving communityparticipation in water management within theexisting legal and institutional framework.

Overview of the Nyando River BasinStudy Site

The Nyando river drains into one of the largestlakes of the world, Lake Victoria (see Fig. 11.1).The Nyando river basin covers an area ofapproximately 3517 km2 and had a populationof approximately 746,000 as of 1999 (Mungaiet al., 2004). At that time, the average popula-tion density was 212 persons/km2 across thebasin, with large areas supporting up to 750persons/km2 and other large areas with as fewas 50 persons/km2.

As of 1997, the incidence of poverty, asmeasured by food purchasing power in Kenya’spoverty mapping study, was generally high inthe Nyando basin, with an average povertyincidence of 58% in the Kericho district, 63% inthe Nandi district and 66% in the Nyandodistrict, compared with the national average of53% (CBS, 2003; World Bank, 2005). Poverty

incidence is variable across space, with an esti-mated incidence ranging from 36 to 71% acrossthe administrative locations of the Nyandodistrict (see Fig. 11.2). HIV/AIDS prevalence is28% in the Nyando district, 7% in the Nandidistrict and 12% in the Kericho district(Swallow, 2004). The basin is primarily inhab-ited by two ethnic groups – the Luo, whooccupy the lowlands and part of the midlandsand the Kalenjin, who occupy the highlands.Small numbers of a third ethnic group, theOgiek, occupy parts of the forest margin at theuppermost parts of the basin. Almost the wholebasin falls within the three administrativedistricts of Nyando, Nandi and Kericho, withsmall portions of the basin falling within otherneighbouring districts.

The upper reaches of the basin rise as high3000 m above sea level (m asl) and receive anannual average rainfall of between 1200 and1600 mm/year. The highest parts of the basin arewithin gazetted forests of the Mau forest complex –known as one of Kenya’s five ‘water towers’. The uplands also support some large-scale tea plantations, smallholder subsistence andcommercial agriculture. The Kano plains form the

Coping with History and Hydrology 175

Fig. 11.1. Map of Kenya with Nyando basin.

176 L. Onyango et al.

lowest parts of the basin, adjacent to Lake Victoriawhere the Nyando river discharges. The Kanoplains lie between 1100 and 1300 m asl andreceive an annual average rainfall of between 800

and 1200 mm/year. The Kano plains are prone toboth floods and droughts. Economic activity inthe lowland and midland areas ranges from small-scale subsistence agriculture to large-scale

Fig. 11.2. Percentage of rural population below the poverty line in the Nyando river basin.

commercial production of sugarcane. A part of theKano plains has been developed for large-scaleirrigation.

The Nyando basin is endowed withunevenly distributed surface water and ground-water. The highlands have many streams andsprings, which are the main sources of water forhuman and livestock use. The lowlands experi-ence less rainfall, fewer rivers and streams, andsaline groundwater (Okungu, 2004). TheNyando basin experiences serious land degra-dation. Walsh et al. (2004) estimate that about61% of the basin suffers moderate to higherosion (soil loss of 40–70 t/ha/year), while theother 39% accumulates sediment (soil accretionof 38–61 t/ha/year). Although upland areas arebeing eroded, the most severe consequencesare felt in the lowlands, which experience seri-ous flooding and siltation. The net erosion ratefor the entire basin is estimated at 8.8 t/ha/year.The Nyando river carries very high levels ofsediment and is a major source of pollution andsediment loading of Lake Victoria (Walsh et al.,2004).

Research Methods

The main research method used in theSafeguard project was a set of 14 village-levelstudies of poverty and property rights dynam-ics. A multi-stage sampling procedure was usedto select villages. The first stage involved thecharacterization of the basin into strata basedon altitude, hydrology, land tenure, ethnicityand agricultural production system. The samplesites were drawn from the strata to represent therange of situations that exist in the basin. Table12.1 of Swallow et al. (Chapter 12, this volume)provides additional information about each ofthe 14 villages. In each selected sub-location,one village containing between 50 and 100households was selected for a participatoryanalysis of poverty and livelihood dynamics.The foundation of that analysis was the ‘Stagesof Progress’ methodology developed byAnirudh Krishna and applied in India (Krishna,2004; Krishna et al., 2005), Kenya (Krishna etal., 2003) and Uganda (Krishna et al., 2004).

By systematically prompting and guiding dis-cussions among a village representative group,the method generates a Stage of Progress ladder

for the village, which ranges from absolutepoverty to relative prosperity, poverty and pros-perity lines defined by those stages, andmeasures of the level of poverty:prosperity andpoverty dynamics for each household in thevillage. In the Safeguard project, we added in astronger focus on livelihood strategies pursuedby households in the village, as well as the assetsrequired for those livelihood strategies. A villageresource map and calendar of historical eventsconcerning land, water and tree assets in thevillage were also generated for each village.

Information on land and water use andmanagement was collected through both focusgroups and household surveys. First, an inven-tory of water points was compiled as part of aresource-mapping exercise that was conductedwith the village representative group. Secondly,a list of 18 questions on land and watermanagement in the village was posed to thevillage representative groups during a half-daydiscussion period. Questions focused on access,equity, control of land and water as well as onwomen’s rights to land, water and trees.Additional questions about irrigation manage-ment were posed, where relevant. Thirdly, ahousehold survey was conducted with a sampleof about 30 households in each village, largelyfocusing on land and water management. Thehousehold sample was stratified by povertylevel and poverty dynamics.

Besides data from the 14 Safeguard villages,complementary information was compiled froma wide range of secondary information sources.Registry Index Maps (RIMs) were combined forthe three districts to generate a set of landtenure maps for the basin. Maps were gener-ated to depict the situation as it was in 1964, atthe eve of independence, and how it was in2004, 40 years after independence. The historyof land tenure and institutional change wascompiled from a variety of literature sourcesand government documents.

Evolution of Land Tenure Systems in theNyando River Basin and Access to Water

under Each Type of Tenure

Land in the Nyando river basin is held underdifferent tenure systems in different parts of thebasin, with each system changing over time. In

Coping with History and Hydrology 177

pre-colonial Kenya, all natural resources wereowned communally and claims were deter-mined by clans. In the colonial era, the CrownLands Ordinance of 1902 gave authority to theCrown to alienate land. Any land not physicallyoccupied by local people was consideredwasteland (free land) and free for alienation tothe European settlers. Local people’s rights toland were defined by occupancy, while settlerswere given freehold titles by the Crown.

Two parallel landholding systems thus devel-oped. When settlers wanted to gain control overland that was occupied by locals they had tonegotiate the right of occupancy with localpeople. The settlers advocated for grouping theAfricans in defined reserves far removed fromany lands deemed to be suitable for Europeansettlement. The Crown Lands Ordinance of1915 allowed the Governor to create Nativereserves and provided for the settlers to begiven agricultural leases of 999 years. Followingthe Kenya Land Commission (CarterCommission) of 1934, the Native Lands TrustOrdinance of 1938 re-designated NativeReserves as Native Land and removed themfrom the Crown Lands Ordinance. This createda set of laws to govern native lands and anotherset to govern crown land. Even after indepen-dence both sets of laws were still in force, whichin part explains the current state of confusion inland administration in Kenya.

The Native Land Trust Board under theChief Native Commissioner held native land intrust for the communities. Local people lost alltheir rights to lands outside of the native lands.The Crown Lands Ordinance was amended todefine the highlands, which were administeredby a separate Highland Board. Both boardsand their boundaries were set up by 1939 andremained the same up to the time of indepen-dence in 1964 (Juma and Ojwang, 1996). Thehighlands are commonly referred to as thewhite highlands. They were often the mostproductive parts of the country and developedcash economies, whereas the native lands wereoften the less productive and developed subsis-tence economies. These patterns persist to date.Figure 11.3 is an attempt to illustrate the evolu-tion of land tenure in the Nyando river basin.

This study identified seven ways in whichland is currently held in the Nyando basin: (i)trust land – not titled; (ii) government land – not

titled; (iii) adjudicated land – freehold titles oncompletion of adjudication; (iv) settlementschemes – freehold titles on discharge from theSettlement Fund Trustee (SFT); (v) large-scalefarms with leasehold titles; (vi) land-buyingcompanies – freehold title on subdivision tosmall units; and (vii) forest land – reserved ongazettement. The landholding types in (iii), (iv),(v), (vi) and (vii) all fall under the category,labelled as ‘private land’ by Mumma (Chapter10, this volume). This study has generated amap of land tenure for 1964 (see Fig. 11.4) –when the country achieved independence –and one of land tenure for 2004 (see Fig. 11.5)for purposes of analysing changes in landtenure. Using the two maps it is possible toexamine the changes that have occurred overthe last 40 years and how these changesexplain contemporary water rights and genderrelations. The remainder of this sectiondescribes land and water management undereach land tenure type currently existing in theNyando basin.

Management of land and water in trust lands

Public land in the native lands is held in trust forthe people by the local authorities and isreferred to as trust land. Before adjudication, allland in the native areas was trust land. In theNyando basin there are three county councils(Nandi, Kipsigis and Nyando), as well asseveral municipal and town councils. All trustland that is not identified and gazetted for aspecific use is held in trust by these local author-ities. However, a survey of the three countycouncils established that most trust land in thebasin had already been alienated. Whatremains under the jurisdiction of the countycouncils today are schools, cattle dips, dispen-saries and some wetlands in the floodplainsadjacent to Lake Victoria.

Water and other resources found on trustlands are mostly open to all people who livewithin the local community. People fromoutwith the local community may be allowedaccess to those resources, although locals aregiven priority, especially if the commodity isscarce. Access to natural water sources such asstreams and springs is generally more openthan access to constructed water facilities.

178 L. Onyango et al.

Coping with History and Hydrology 179

Fig. 11.3. Evolution of land tenure in the Nyando river basin (from authors’ conceptualization based onextensive literature reviews).

Management of land and water ingovernment lands

At independence, all crown land was convertedto government land and was administered bythe Commissioner of Lands on behalf of thePresident. All government land that is not alien-ated is still held in the same way. No one hasany right to use or occupy such land unlessgranted a lease by the government, although itis common to find unofficial users of theselands. In the Nyando basin, government land isfound only in the urban centres such as Kerichoand Muhoroni and in the riparian reserves that

abut streams, rivers and wetlands. Access towater resources on government land tends tobe poorly regulated. Local authorities wouldideally be the custodian of such land, but theyrarely take up that responsibility, so riparianreserves remain designated as governmentland. The lack of enforcement of regulation ofriparian areas on government land means thatthese are the places where high-density slumstend to be located all across Kenya. In theNyando basin, similar trends are alreadybecoming evident in towns like Muhoroni andAhero. A very negative impact of the de factoopen access to riparian reserves is that the

180 L. Onyango et al.

Fig. 11.4. Land tenure in the Nyando river basin in 1964.

rivers in towns are recipients of refuse from bothpeople and industries. In Nairobi, it is reportedthat 34% of urban vegetable producers divertuntreated sewerage from trunk sewers on totheir riverine gardens (Cornish and Kielen,2004).

Management of land and water inadjudicated land

Land adjudication is the process through whichland in the native reserves is surveyed andregistered as freehold. This process started in

Coping with History and Hydrology 181

Fig. 11.5. Land tenure in the Nyando river basin in 2004.

1956 in some parts of central Kenya, but waswidely implemented only after independence in1964. The process of adjudication was slowbecause it had an inbuilt mechanism for hear-ing and determining disputes and, in manyinstances, included land consolidation. Oncompletion of adjudication a freehold interest isregistered and a title deed issued. The processof adjudication was prompted by theSwynnerton Plan of 1955, as the colonialgovernment looked for ways of improving agri-cultural production in native lands. TheSwynnerton Plan recommended that agricul-tural production could be enhanced if titleswere issued to the Africans for the land theycultivated. The government was to provideloans for improving agriculture, using the titlesas security.

Adjudication sections are carved out alongethnic lines and thus tend to be homogeneousin terms of ethnicity. As a result, property rightsto adjudicated lands are heavily influenced byculture. In the two dominant ethnic groupsfound in the basin, land is controlled by menand managed through male-dominated coun-cils of elders. Both the Luo and Kipsigiscommunities practice polygamy. Land is inher-ited from fathers through the mothers. Eachmarried woman is allowed to cultivate specificpieces of land which are referred to as her land,although the women are rarely if ever registeredas the title-holders of that land. When her sonsgrow up, the woman gives each of them a pieceof land from the portion she has been cultivat-ing. Sons are allowed to transfer the land andcan acquire a title deed. Most women will onlyget land registered in their names if theirhusbands die while their children are still legalminors. An examination of the adjudicationregisters in the Ketitui sub-location (Village 3),which is Kalenjin-speaking, showed that 8% ofthe land was registered in the names of womenwhile 92% was registered in the names of men.In the Agoro East sub-location (Village 12), aLuo-speaking community, the register indicatedthat of the registered parcels of land 12 and88% were in the names of women and men,respectively.

Land adjudication is followed by a survey toestablish the boundaries and the area of aparcel of land for the purposes of registration.The land adjudication process in the Nyando

basin did not make any allowances for riparianreserves, but instead used the rivers as bound-aries between individual plots. This had theeffect of privatizing riparian reserves. Anyonewhose land did not reach the river did not gainaccess to the riparian reserve. Since the riverwas drawn as a thin, straight line it was part ofthe two pieces of land on either side. Publicaccess to the river was at the bridge where theroad and the river meet. All adjudicated land isformer ancestral land and is subject to custom-ary norms. The customary norms of both theLuo and Kipsigis dictate that no one should bedenied water. A Kalenjin proverb summarizesthis by saying: ‘Even the hyena [the leastrespected of the animals] has a right to water’.Because of this customary norm, people will letothers pass through their private property toaccess river water even where there is nodemarcated road. The lack of fencing, which ischaracteristic of adjudicated land in theNyando river basin, makes it possible to createand use short cuts across individual lands.

When the river water is harnessed for apiped water supply, two methods can be usedto secure passage through private land. Thesafest and most secure is to obtain an easementor a way leave, which will allow the pipes topass officially through private property withoutinterference from the registered owner. This isprovided for in the Way Leaves Act, Cap. 292.The other alternative, which is more often used,is to seek verbal permission from the owners ofthe land through which the pipes will pass.Because water projects serve many people andbecause the customary laws dictate that no oneshould be denied water, this approach works,but it is not secure. In the event of any of thelandowners falling out with the rest of thegroup, then he or she can cause a lot of troubleto other members.

Springs as water sources were also notaccounted for in the adjudication process. As aresult, all springs in the adjudication areas fallon private land. There are rarely public roadsleading to the springs, so people use the roadspassing closest to the springs and, where theroads end, they create trails passing throughprivate land. By Luo and Kipsigis custom, noone denies other members of the communitywater from the springs. However, access to thesprings is in fact becoming more restricted over

182 L. Onyango et al.

time as land is subdivided and more fences areerected. Many water projects around springshave not yet entered into any legal or writtenagreement with the landowners on which thesprings are found. This study established thatmost water projects around springs in the basinrely on customary laws to secure rights to thesprings, sometimes backed up by a ‘No objec-tion’ form signed by the landowner (Were et al.,2006).

Management of land and water ingovernment settlement schemes

At the time of independence, the newGovernment of Kenya set up settlement schemesas a way of transferring land in the white high-lands from European settlers to African farmers.This was done in several ways. One of these wasthrough the Settlement Trust Fund (STF) payingoff the white farmer, planning and subdividingthe land and then settling African farmers on it.The STF allocated the land on loan and regis-tered a charge with the Permanent Secretary inthe Ministry of Lands. When a farmer paid offthe cost of the land to the Settlement Trust Fund,he obtained a certificate of discharge from thePermanent Secretary in the Ministry of Landsand registered a freehold interest in his favour.The STF also provided farmers with loans forworking capital. The five settlement schemes(Koru, Oduwo, Muhoroni, Songhor and Tamu)in the Nyando district fall in the mid-altitude partof the basin and were set up to promote rain-fedsugarcane farming. Three sugar factories –Miwani, Chemelil and Muhoroni – wereconstructed to process the sugarcane producedin these settlement schemes. The cash economythat had been started by the white farmers wascontinued. In the Kericho and Nandi districtsthere are fewer settlement schemes and theypromoted mixed farming (dairy, tea and foodcrops).

Settlement schemes were a creation of thegovernment and, although a lot of planningwas carried out in other aspects of land use(e.g. steep hillside areas), they did not take careof the riparian reserve. This oversight can beblamed in part on the legislation under whichthe land was registered, which did not stateclearly the width of the riparian reserve. As a

result, the river was used as a boundarybetween farms, which again had the effect ofallocating the riparian reserve as private land.The government involved professional land useplanners who took care of springs, dams andswamps as sources of water. They were identi-fied, surveyed and reserved as Special Plots tobe held in trust by the local authority for thecommunity. The land reserved was substantialand allowed for catchment protection andconservation. However, due to lack of afocused land policy and enforcement, some ofthese special plots have recently been allocatedto individuals. Other special plots have becomede facto open access plots.

The people who settled in the schemesusually did not have their origin in the samecommunity, so they lack the cohesion thatcomes with a common heritage. Most settlersmoved to the area with the hope of making abetter life for themselves, so that economicfactors are foremost in their dealings. Statutoryrights protect individual rights that promoteaccumulation, as opposed to customary rightsthat advocate the communal use of resources.There is better enforcement of statutory rightsthan in the native lands where people choosenot to prosecute their close kin even when thelivestock of these kin destroys their crops. As aresult, statutory rights are more powerful butcustomary rights still exist.

Management of land and water in large-scaleleasehold commercial farms

Large-scale farms are found only in the formerwhite highlands and are operated as commer-cial enterprises. All large-scale farms hold 999-year leases from the government. Mostlarge-scale farms in the higher altitudes are teaplantations, while in the mid-altitude areas theyare sugarcane plantations. Multinationalcompanies such as Unilever operate most of thetea plantations, but most of the sugarcane plan-tations are locally owned. There are a numberof factories located within the region to processboth sugarcane and tea. The large-scale farmsemploy large numbers of labourers, many ofwhom are provided with housing within thefarms. There are people who have lived on theplantations all their lives and have come to feel

Coping with History and Hydrology 183

entitled to land on the plantations. Severallarge-scale farms, including eight tea estates,have excised portions of their land to settlethese long-term farm workers, popularly knownas squatters. The land claims of long-term farmworkers pose a serious challenge to large-scalefarms. Where these claims have been ignored,the squatter populations have been known totake the law into their hands and invaded thefarms. This was the case in one of our samplecommunities, i.e. Kapkuong (Village 8).

The operations of the large-scale farms arestrictly guided by the statutory laws. Waterresources on the large-scale farms are accessedonly by persons authorized by the farm owners.Environmental management on most large-scale commercial farms is exemplary, and theirwater sources are well protected. Riparian areasare conserved and the natural vegetation leftintact. Most have employed environmental offi-cials in response to increasing concerns aboutenvironmental protection and the long-termsustainability of their operations. Large-scalecommercial farms in the Kericho district haveassisted the District Administrative Office indetecting illegal use of forest resources.

Land and water management in subdivided,large-scale farms purchased by land-buying

companies

Land-buying companies emerged as an impor-tant phenomenon after Kenya’s independence,as a way of transferring landownership fromwhite settlers to interested Africans. Com-mercial land-buying companies emerged inpart because the government was unable topurchase all the land from the white settlerswho wanted to sell. The government thereforeallowed the white settlers to negotiate salesagreements with anyone who was willing andable to make an outright purchase. Very fewAfricans were in a position to do this, so theycame together to form land-buying companiesor cooperatives. The members contributedmoney for the purchase of land and were allo-cated land in proportion to their share of thecontribution.

There were no rules restricting membershipin the land-buying companies and this led toproblems. Some companies had so many

members that they were unable to be account-able to all the members, and these memberslost their money. At other times, they were allo-cated very small parcels of land. They also didnot pay much attention to topography, land usesuitability or the provision of public utilities suchas water points, roads, schools and clinics. As aresult, people were allocated land on very steepslopes, swamps, river banks and hilltops. Mostof the land in the upper reaches of the Nyandoriver basin was bought by land-buying compa-nies (see Fig. 11.4). On subdivision, the landwas converted to freehold and each member ofthe land-buying company was issued with afreehold title.

Yet, many land-buying companies have notissued their members with their title deeds, e.g.the Kotetni farm in Chilchila division of theKericho district, purchased in 1968. People wereallowed to settle in the land before theycompleted the process of subdivision andissuance of title. Meantime, the members wereissued with share certificates as evidence that theyhad a right to a share of the land. These certifi-cates were inadequate because they indicatedonly that a member owned shares but did notspecify the location of the land allocated to him orher. Companies have taken a very long time toprocess the documents, and sometimes the finalsurvey results did not tally with the actual positionof the plots where members had already settled.Corruption and lack of accountability were rife inthe workings of the land-buying companies. Insome instances, the President had to intervene inthe issuance of the title deeds to be issued. Suchappeals are common and are reported in thedaily newspapers.

The processes of subdividing the large-scalefarms were spearheaded by the private sector.The private firms wanted to allocate as muchland as possible to their members, so they didnot spare any land in the riparian reserves. Allsprings are also located on private land, with nopublic access routes. Shareholders in land-buying companies often come from differentplaces and thus have different cultural normsregarding land and water management. Peoplehave therefore tended to rely more on writtenlaws than on cultural norms. Most plots of culti-vated land are fenced, making it more difficultfor people to access water sources. Privateproperty rights are very strong, and barbed-

184 L. Onyango et al.

wire fences were put up to keep away tres-passers and discourage free ranging of live-stock. Springs are all located on private land,with no provision for public access.

Trust relations among people living in thesubdivided large-scale farms are generally low.People who live in the region have moved inonly since independence in 1964, and havecome from all parts of Kenya. Lingeringtensions between the ethnic groups occupyingthis area have been heightened by politicalmanipulations, resulting in the well-knowntribal clashes of 1992, 1994 and 1997. In acommunity with such diverse origins and ahistory of distrust, statutory laws are strongerthan customary laws.

The region has experienced dramatic landuse changes in the last 40 years as the land hasbeen converted from large-scale farming tointense smallholder cultivation. Over the sametime period, the population of the area hasincreased as people move in to occupy thesubdivided farms. The Nyaribari ‘A’ village inthe Bartera sub-location (Village 2) wasformerly the Lelu farm (LR.1442/2), which waspreviously owned and managed by one farmer.The Lelu farm was purchased by the Nyagacholand-buying company that subdivided it andsettled its members. Today, the Lelu farmmakes up the Bartera sub-location with a popu-lation of 2810 people, 526 households and adensity of 273 persons/km2 (Republic of Kenya,2000b). The impacts of these changes on theenvironment are seen in the emerging environ-mental problems, such as deforestation andlandslides. The area has also experienced highrates of erosion (Walsh et al., 2004).

Management of land and water in forest reserves

The Crown Lands Ordinance that establishedthe native reserves was the same measure thatmade provision for the establishment of forestreserves through gazette notices. Once land hasbeen gazetted as a Forest Reserve it cannot beput to any other use unless it is de-gazettedthrough another gazette notice. The forests inthe Nyando basin include the Tinderet Forest,the North Tinderet Forest, the Londiani Forestsand the West Mau Forest. The gazetting of forest

reserves displaced the forest dwellers such aspeople of the Ogiek ethnic group. Many Ogiekpeople remain landless or illegally reside on thefringes of the forest land. Such was the case ofour sample village in Ng’atipkong sub-location(Village 5). The government prohibits entry intothe forest, yet the Ogiek way of life is to use theforest resources for their subsistence. Chronictension between the Forest Department, thelocal administration and the Ogiek communitiesbecomes more heated when the governmentchooses to implement tighter restrictions onforest use.

Water sources in the forest are not easilyaccessible, due to the government policy thataims to keep people away from the forests.Forests are guarded by forest guards, who oftenharass the local people whom they suspect ofencroaching upon the forest. However, theforests are the source of many permanentsprings. The Kaminjeiwa village in Kedowa sub-location (Village 1) is a forest frontier commu-nity, and here the most permanent and thecleanest sources of water are within the forest.The people use these sources although theysuffer constant harassment from the forestguards. The Ngendui village in Ngatipkong sub-location (Village 5) sits on the edge of agazetted forest. In this village, the livestock andpeople draw water from the same point. Cropsare cultivated up to the eye of the spring and,despite being on forestland, almost all the treeshave been cut down. People living in that areaare not provided with government agriculturalextension services because they are consideredto be squatters. The new Forest Bill passed in2005 holds some prospect for more effectiveco-management of forest resources by thegovernment and local community groups.

Gender Roles in Community Water Relations

Household water relations

In rural Kenya, water interactions occur at boththe household and community level. At thehousehold level, water interactions concernwater demand, supply and allocation. Howmuch water is needed? Who fetches it? What isit used for? This study confirmed that, in

Coping with History and Hydrology 185

Nyando, as in many parts of Africa, it is womenwho fetch water for the whole household. Of thehousehold respondents in the Safeguard study77% indicated that women are the most impor-tant collectors of water. Of the householdssurveyed, 18% had water within their home-steads, 70% obtained their water from othersources within their villages and 12% had to gobeyond the village to fetch water. Men herd andtake livestock to collective water points, whilewomen carry water to livestock (especially dairycows) kept within the compounds. In the lowerbasin, drinking water is collected from rivers inthe early morning before water is contaminatedby people and livestock upstream.

It is common to find most members of thefamily going to bathe in the river to savewomen from having to carry water to thehomestead. There are separate designatedbathing spots for men and women along therivers. Men tend to bathe downstream andwomen upstream, since men usually go alongwith their livestock, which disturb water fordownstream users. Women carry laundry to theriver to save them from carrying water back totheir homesteads and, when they go to bathe inthe river, they carry water back. The 1999population census (see Fig. 11.6) indicates thatmost people in the basin obtain their domesticwater supply from rivers.

Women have primary responsibility forproviding water for domestic needs in theNyando basin. Table 11.1 lists the first, secondand third most important collectors of domesticwater: clearly, wives and children are the maincollectors of water for the 150 householdsinvolved in the Safeguard household survey.Fewer than 10% of respondents indicated thathusbands ever collected water.

Community organizations involving water

Community water interactions go beyond indi-vidual households. Organizations involvingwater are often spearheaded by men, althoughthe impetus for organization is often providedby women. Why? Although women are givenresponsibility for providing their householdswith water, they are handicapped when itcomes to organizing water supplies, becausewater is found on land, or passes over land,

controlled by men. Therefore, it is the men whocan make decisions about what can or cannothappen on the land. At a glance, the menappear to take leadership of the projects whilethe women just enjoy the benefits of improvedwater supply. However, further probing revealsthat the women work behind the scenes andmake many contributions to the instigation andimplementation of water projects throughproviding labour, food and even money (Wereet al., 2006). Communities in the lower Nyandoorganize around water in irrigation areas andthe irrigation committees are male-dominated.

Piped water supplies

A water supply refers to the supply of waterfrom a system that has been improved andinvolves reticulation and improved water qual-ity. Water supplies tap water from rivers, springsand bore holes. Water supplies in the Nyandobasin have been implemented by the Ministryof Water and Irrigation, local communitygroups, the National Water Corporation andPipeline Company (NWCPC), a variety ofNGOs, private companies and public schools.An unpublished assessment undertaken for theLake Victoria South Service Board indicatesthat, in the Kericho district, the Ministry ofWater and Irrigation operates 48% of the watersupplies. These are mostly fixed pump-watersupplies, with high costs of implementation andmaintenance.

Community groups own 28% of the watersupplies, most of which are low-cost, gravity-fedprojects. The public schools own 14%, theprivate companies 7% and the NWCPC 3%. Inthe Nyando district, the community groupsmanage 39% of piped water supplies, privatecompanies 26%, the Ministry of Water andIrrigation 19%, public schools 13% and theNWCPC 3%. In the Nandi district, the commu-nity groups manage 20% of water supplies,private companies 33%, public schools 21%,the Ministry of Water and Irrigation 11% andthe NWCPC 3%. Some households can affordto have piped water in the homesteads, whilemost of them purchase water from communalstand points or community kiosks, where theyare charged per unit of water used. Communitykiosks are managed by women’s groups orother private vendors.

186 L. Onyango et al.

Boreholes

There are no community-initiated water suppliestapping water from boreholes in the basin becauseof the high costs incurred in drilling and pumpingthe water. On average, the cost of sinking a bore-hole is about US$10,000 (A. Adongo, Kisumu,2005, personal communication). Community-

initiated water supplies tap water from springs andrivers.

Rivers

Communities organize around river water in areaswhere there is irrigation. In the irrigation area,water is used for production of rice and horticul-

Coping with History and Hydrology 187

Table 11.1. Most important collectors of household water (from authors’ analysis of data from Safeguardproject (see text)).

Most important Second most important Third most important

Frequency % Frequency % Frequency %

ValidWife 107 71.3 14 9.3 3 2.0Husband 4 2.7 6 4.0 4 2.7All children 20 13.3 53 35.3 7 4.7Male children 7 4.7 23 15.3 20 13.3Female children 7 4.7 12 8.0 8 5.3Relatives 4 2.7 8 5.3 1 0.7Total 149 99.3 116 77.3 43 28.7

Missingfrom system 1 0.7 34 22.7 107 71.3

Total 150 100.0 150 100.0 150 100.0

Fig. 11.6. Main sources of domestic water for households in the Nyando river basin (from Republic ofKenya, 2000b).

tural crops. The irrigation schemes are organizedinto scheme committees. There are a few womenin the committees, but the majority of committeemembers are men. In the five Safeguard villageswhere irrigation is practised, only the rice-growingcommunities have water management commit-tees: Ahero (Village 9), Jimo middle (Village 13)and Achego (Village 14).

Springs

Springs are common in the upper and middlereaches of the basin. Spring protection is onearea where communities organize aroundwater. In some instances the spring is justprotected and the people come and fetch water,but there are also instances in which springs areprotected and piped. When the spring water ispiped, only members who have contributedtowards the effort benefit by getting individualconnections to the water supply. There are nocommunal standpipes or water kiosks fromwhich such water is sold.

A spring census carried out in the part ofKericho district that is within the Nyando basinyielded an inventory of 143 springs, 17% ofwhich were protected but not piped and 17% ofwhich were protected and piped. Communitygroups took the lead for about half of theprotected and protected-and-piped projects (D.Buntdotich, unpublished data, 2005). In onlyone of these community-based schemes was itevident that women took the lead in instigatingand implementing the project.

Water pans

Water pans are a common source of water inthe lower Nyando basin. Many water pans havebeen constructed through community initia-tives. Construction involves digging up land toenable harvesting of surface run-off. A fewwater pans have also been constructed by indi-viduals. Community water pans tend to bemanaged by the village elders and other villageleaders, with maintenance done on a voluntarybasis by the community. Some water pans wereconstructed by government agencies underdonor-aided projects, such as the Winam GulfProject, or through food-for-work projects.Water pans are used by the community mainlyto water livestock and irrigate vegetable

gardens. During water-scarce times, water fromthe pans is also used for cooking and drinking,although they tend to be heavily polluted bylivestock. This can be a potential source ofconflict between men and women, with menresponsible for watering livestock and womenresponsible for household water supplies.

Shallow wells

Shallow wells are a common source of water inthe lower Nyando basin. Shallow wells areusually hand-dug to a depth of 70–100 feet(21.5–30.8 m), and are fitted with a hand-pump. Some are financed by donors, whileothers are financed and constructed by individu-als. Only a few are initiated by the community.The cost of a 70-foot-deep, hand-dug, shallowwell ranges from Ksh25,000 to 30,000 (approxi-mately US$345–415), excluding the cost of thepump (M. Vardhan, Kisumu, 2005, personalcommunication).

In the case of donor-supported shallow wells,there is always an element of cost-sharingbetween the community and the donor. Thecommunity contributes local materials and foodfor the masons, while all other materials andpayments are borne by the donor. The day-to-day management and operation are taken overby the community group on completion ofconstruction. In most cases, women groups areresponsible for management of the shallow wellsthrough a committee. Members of the women’sgroup pay a monthly flat rate to draw water fromthe well, whereas the non-members pay per unitof water collected. Water from shallow wells isused for drinking, cooking, washing, wateringlivestock and vegetable plots. A common prob-lem with donor-assisted shallow wells is that thewells are located on private land, without thesupport of signed land-easement agreementswith the landowners.

Rainwater

Rainwater harvesting in the basin is carried outat both the individual and group level. SeveralNGOs provide technical assistance to roofcatchment projects. However, the householdseeking such a project has to contribute finan-cial and material inputs. The cost of erectingstorage facilities for the water is too high for the

188 L. Onyango et al.

majority of the people in the basin. A largernumber of the people engage in a simplermethod where rainwater is collected into potsand pans. This has a lower cost, but it providesless storage and does not make optimal use ofthe roof catchments.

Summary of Results

Property rights and legal pluralism in theNyando basin

The analysis presented in this chapter hasestablished that there are multiple sources ofauthority governing access to water in theNyando basin, most of which are in fact relatedto the governance of the land where waterpoints are located. Ambiguity and institutionaloverlap of land and water management lead tosolutions that are context-specific, subject to re-negotiation and latent conflict.

Property rights in the Nyando basin changeacross the landscape. Large parts of the upperpart of the catchment are in large-scale farms orhave been subdivided by land-buying compa-nies to people who are socially disconnected.Where there are no common customary normsamong the residents of an area, statutorysources of authority tend to be more important.The statutory land laws tend to privilege indi-vidual use, thereby weakening the access ofothers to key water sources located on privateland. In gazetted forests and areas that aredesignated as riparian reserves under stateauthority, lack of effective enforcement meansthat these are effectively open-access areas but,rather than providing a better water service, thisoften leads to degradation of the water sourcesthrough pollution or depletion, because no onetakes responsibility to protect the water sources.

Most of the lower parts of the basin areformer native reserve lands where people aremore tightly connected by customary norms,and statutory laws are applied less frequently.Sharing is strongly encouraged, weakening thepotential for wealth accumulation and infra-structural investment. No one is expectedalways to be rich, which is summed up in a Luosaying: inind diere inind tung. Loosely trans-lated, this means that, today you sleep betweenthe others and you are kept warm and safe, but

tomorrow you will sleep on the edge where noone will shield you from the vagaries of life.

The institution of the chief and the villageelder is a point where customary law and statu-tory law merge. The chief in the rural setting isusually a local person who is well versed in thecustoms of local people. He works with villageelders who know the customs as well as thesituations of individual families. Many issues areresolved at the level of the chief and villageelders. Where it has to go beyond them to thecourts of law, then cultural rights are repre-sented by the chief. In this way non-statutorylaws blend with statutory laws. This approach iscommonly applied for the settlement of landcases. It could play a greater role in resolvingwater management cases.

Constraints to community water development

One of the Millennium Development Goals is‘reducing by half the proportion of people with-out sustainable access to safe drinking water’.Water development in rural Kenya facesconstraints in meeting this goal, especiallyamongst the poorest in the community becauseof the ‘user pays principle’. The poorest are sopoor that they are unable to pay for water. Thehistory of the basin has created geo-spatialpatterns of wealth and poverty, with pockets ofvery poor communities. In areas with high inci-dence of poverty, such as the former native landsin the lower Nyando (see Fig. 11.5), the commu-nities have less capacity to contribute financiallyto community water development: they relyheavily on donor-funded water development.

Landownership and settlement patterns influ-ence community management of water. Peoplefind it difficult to access water pans or riverswhose banks are owned as private property.They have to negotiate for the use of land tolocate water facilities because in many cases noland was set aside. Within some communitiesthere is little social cohesion. This is especially sowhere people have moved into an area fromdiverse origins, e.g. land-buying companies andsettlement schemes. Where there is communitycohesion, development of community projects iseasier, but it may be useful for such groups toobtain written agreements from those whoseland is affected, so that statutory law can rein-

Coping with History and Hydrology 189

force the agreements in case of local conflicts.Although women have primary responsibil-

ity for water management, they are constrainedin instigating infrastructural investmentsbecause these investments will invariably affectsome areas of land which tend to be controlledby men. Gender relations therefore have aprofound effect on water management. At theminimum, men need to be convinced that thewater management activities of their wives willprovide benefits in terms of increased wateravailability and improved household income.

Implications for Kenya’s Water SectorReforms

This study has established that Kenya’s histori-cal processes of settlement and land tenuredifferentiation have created a plurality of landand water property rights across the Nyandobasin. There is therefore a need to explore waysthrough which policy formation processes canbe made more meaningful to local communitiesaffected by different combinations of land andwater rights. One way of doing this is byimproving community involvement in waterresources management within the existing legaland policy framework. An integrated approachto water resources management would linkcommunity water development to other naturalresource policies, strategies and legislation andenhance the performance of community orga-nizations (see also Mumma, Chapter, 10 thisvolume).

The Water Act, 2002 (Republic of Kenya,2002) creates the Water ResourcesManagement Authority (WRMA) for manage-ment of water resources and the Water ServiceRegulatory Board (WSRB) to regulate theprovision of water and sewerage service. Theseinstitutions implement and inform policy. Adiagrammatic representation of the institutionscreated by the Water Act, 2002 is found inMumma, Chapter 10, this volume. The regionaloffices created by the Water Act, 2002 shouldlink their work with relevant government institu-tions that also affect water management.Coordinated action by government agencies ona common local platform would create a forumfor effectively linking up with local communities

to ensure that their interests and issues areaddressed and their capacities enhanced. Table11.2 indicates some key government ministriesinvolved in natural resources management withdirect impact on water resources management.Integration of institutions found in the lastcolumn can be an ideal point for creating aforum where the government agencies meetlocal communities.

Resource conservation and protection bycommunity organizations

The Environmental Management andCoordination Act (EMCA) of 1999 (Republic ofKenya, 2000a) established the NationalEnvironment Management Authority (NEMA)as the principal instrument of the governmentfor implementation of policies related to theenvironment. Every 5 years, NEMA mustproduce a National Environmental Action Plan(NEAP), Provincial Environment Action Plans(PEAP) and District Environment Action Plans(DEAPs). The preparation of a DEAP isdesigned to be a participatory process that canbe a forum for the governmental agencies andthe local communities to come together toanalyse natural resources (including water) anddevelop a workable plan of action for sustain-able use, protection and conservation. One ofthe concerns of downstream communities inthe Nyando basin is that rivers are polluted byupstream users, particularly by industries suchas the sugarcane factories. The EnvironmentalManagement and Coordination Act (Section42) addresses the protection and conservationof the environment, with specific reference torivers, lakes and wetlands.

Environmental restoration orders (Section108), Environmental easements and Environ-mental conservation orders (Section 112) canbe used to prevent pollution of rivers and holdpolluters accountable for the damages theygenerate. The Agriculture Act supports theEnvironmental Management and CoordinationAct by providing for land preservation orders.Local community groups can be made moreaware of these tools and of their rights by thegovernment agencies within the participatoryprocesses.

190 L. Onyango et al.

Improving physical access to water resourcesand water facilities

Kenya’s current policies and organizational set-up mandate many organizations to be involvedin improving physical assess to water resourcesand water facilities. Under the Water Act, 2002,

the Water Resource Management Authority ismandated to mobilize communities to identifytheir needs related to water resources manage-ment – including infrastructural requirements,areas that should be set aside for conservation ofwater sources and access roads. Those needsshould be integrated into participatory processes

Coping with History and Hydrology 191

Table 11.2. A framework for integrating Kenya’s statutory natural resources management institutions (fromauthors’ conceptualization based on literature review and field study).

Implementing National Regional National policy Regional policy Statutes ministry institution representatives tools tools

Water Act, 2002 Ministry of Water Resource Water Service National Water Catchment Water and Management Boards Services Strategy Management Irrigation Authority Catchment Area National Water Strategy

Water Service Advisory Resources Regulatory Committees Strategy Board

Environmental Ministry of National District National State District State of Management Environment Environmental Environment of the Environment and and Natural Management Coordinators Environment ReportCoordination Resources Authority Report District Act of 1999 National Environment

Environment Action PlanAction Plan Environmental

Easements

Agriculture Act Ministry of Forest District Conservation Cap 318 Agriculture Department Agricultural Orders

OfficersAgricultural ExtensionWorkers

Local Government Ministry of Municipal Council Local Act Cap 265 Local Councils Committees Development

Government County Councils PlansEnvironmentCommittees

Physical Planning Ministry of Department of Physical National Physical Act of 1996 Lands and Physical Planning Liaison Development

Housing Planning Officers Committees Plans (Land Use Plans)District LiaisonCommittees

Ministry of District National District Planning and Development Development Development National Officers Plans PlansDevelopment (Economic (Economic Plans)

Plans) District District Focus Development for Rural Committees Development (DDCs)Strategy

of preparing Physical Development Plans by theDepartment of Physical Planning (Republic ofKenya, 1996) which, on approval, become theofficial documents that guide development in aparticular area. The Land Acquisition Act can beused to provide for compulsory acquisition ofland needed for public utilities, and the WaterService Trust Fund should compensate thedisplaced owners of that land. The NationalEnvironment Management Authority shouldmake sure that water management plans areintegrated into the District Environmental ActionPlans, which are then integrated into theNational Environmental Action Plans.

In order to be in line with the nationalbudgeting requirements, it is necessary to trans-mit these needs to the national offices. The nextstep would then involve the government lineministries mandated to implement the specificsincluded in the plan. The Ministry of Roads isempowered to begin the process of compulsoryland acquisition for the proposed roads; theWater Service Board or Water Service TrustFund would avail the money for the compensa-tion; the Ministry of Water and Irrigation willinstitute the process of compulsory acquisitionof the land around the proposed water points;while the Ministry of Environment would insti-tute the process of registering environmentaleasement on behalf of the Water ResourcesManagement Authority and the community.

Such concerted effort by multiple govern-ment agencies is a possible objective for thegovernment agencies implicated in water devel-opment. However, current experience alsoshows that many of these state agencies lackthe resources to effectively reach most ruralcommunities. They also lack incentive to workeffectively across agencies. Governmentinvolvement must therefore be seen as asupplement to, rather than a substitute for,community involvement over the long term.

Financial empowerment of communityorganizations

The financial constraints of rural communitieshave been addressed by the Water Act, 2002through the establishment of the Water TrustFund (WTF). Its mandate is to give financialassistance to the rural communities in improv-

ing community capacity to participate in thedevelopment of water supplies. Groups thatwant to supply water must register with theWater Service Board (WSB) as Water ServiceProviders (WSP). Any group that needs to beeligible to obtain funding from the WTF musthave a legal identity. This is obtained throughregistration with the Registrar of Societies or theRegistrar of Companies at the Attorney GeneralChambers.

Studies carried out in the Nyando riverbasin have found out that there are manycommunity groups involved in water supplyand management, but none of them is regis-tered with the Attorney General. Most of theseare registered with the District SocialDevelopment Officer (DSDO) as Community-based Organizations (CBOs). This situationdisqualifies all the CBOs from being funded.The Water Service Boards must find a way ofensuring that they do not lock out all commu-nity groups. A simplified system of registration,preferably at the district level, is a high priority.

Ultimately, there is considerable scope forgovernment agencies to facilitate improvedaccess to water, but they are unlikely to be ableto fully replace customary authorities andcommunity organizations in managing water. Itis both more realistic and more effective torecognize the need to coordinate with both landmanagement and the local social organizationto build viable institutions for continued waterservices.

Conclusions

The introduction to this chapter suggested thatKenya’s Water Act, 2002 was based on fourimplicit assumptions. The analysis presented inthis chapter for the Nyando river basin impliesthe need for some rethinking of those assump-tions. The first assumption was that land andwater management are quite distinct areas ofadministration and governance. Contrary tothat assumption, we find that use, access andgovernance of water points, riparian areas andfragile parts of the catchment depend largely onland tenure. These interactions between landand water need to be given explicit considera-tion in policies and strategies affecting land,environment and water.

192 L. Onyango et al.

The second implicit assumption of the WaterAct, 2002 was that customary institutions havelittle influence over contemporary patterns ofgovernance. Like several other case studiespresented in this volume, and echoingMumma’s analysis of the Kenya context(Mumma, Chapter 10, this volume), we findthat the customary institutions of the Luo andKipsigis people continue to hold sway in theNyando basin, guaranteeing community accessto water on the one hand, while reducingprivate investment in water point infrastructureon the other.

The third implicit assumption of the WaterAct, 2002 was that formal administrative struc-tures for water management would be able tohave considerable influence over land manage-ment affecting water resources. The analysispresented in this chapter shows that formaladministrative structures may have more swayin the resettlement areas than in former nativereserve areas. At the local level the main face ofthe government is the chief – administrativestructures for water management will need togarner the support and active involvement ofthe chief in order to have any real effect.

Finally, the Water Act, 2002 was based onthe implicit assumption that private and large-scale NGOs would replace the government asthe main supplier of water services. Data andanalysis presented in this chapter suggest thatinformal community groups rather than thegovernment were the main suppliers of waterservices in rural Kenya before the policychange; they are likely to play even morecentral roles with the policy change. Moreexplicit attention should be paid to the needsand constraints of such groups.

In addition to providing a useful analysis ofwater and land management in Western Kenya,this chapter has also demonstrated the merits ofthe analytical approach that was taken. Theunderlying approach drew upon three strandsof literature: the legal anthropology approach tolegal pluralism, the evolution approach to

property rights change and the political ecol-ogy approach to interpretation of landscapedynamics.

Acknowledgements

We would like to thank the staff of Survey ofKenya and Lands Department in Nandi, Kerichoand Kisumu offices for their help in obtaininginformation that enabled us to put together theland tenure maps for the Nyando basin. We alsoacknowledge funding from the ComprehensiveAssessment of Water Management in Agricultureand the European Union for providing funds tocarry out the Safeguard study, from which mostof this information is drawn. We would also liketo acknowledge the many useful commentsprovided by Barbara van Koppen and MarkGiordano.

Endnote

1 The Safeguard project, which was a component of alarger project on ‘Breaking the vicious cycle: manag-ing the water resources of East and Southern Africa forpoverty reduction and productivity enhancement’,was funded through the Comprehensive Assessmentof Water Management in Agriculture. The main objec-tive of ‘Breaking the vicious cycle’ was to bringtogether and synthesize information on the linksbetween water resources, poverty and productivity inAfrica. Other components of ‘Breaking the viciouscycle’ were the African Water Laws Symposium,South Africa, January 2005 and a regional review ofthe dynamics of water resources and poverty in theLake Victoria basin, by the Africa Centre forTechnology Studies. The Safeguard project has been acollaborative project between Maseno University, theWorld Agroforestry Centre (ICRAF) and theInternational Food Policy Research Institute (IFPRI),and is entitled ‘Safeguarding the rights of the poor tocritical water land and tree resources in the NyandoRiver basin’. Additional financial support for theSafeguard project was also provided by the EuropeanUnion, through the World Agroforestry Centre.

Coping with History and Hydrology 193

194 L. Onyango et al.

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