Transcript Document 7246322

Republic of Kenya
Ministry of Water and Irrigation
Future Outlook of the water Sector
Aligning the Water Sector Policy, Legal and Institutional Framework to
the 2010 Constitution:
Presented at the WASPA Conference
Task Force on Alignment to the New Constitution,
Ministry of Water and Irrigation
Maji House, Ngong Road
P. O. Box 49720-00100
Nairobi, Kenya
8th September 2011
Background
The current Outlook
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2
Objective and Tasks
Objective: To make proposals on the changes necessary to align the policy, legal
and institutional framework of the water sector to the 2010 Constitution
Tasks:
3
1.
Review gains/successes of the reform so far
2.
Note existing and emerging challenges
3.
Examine the provisions of the 2010 Constitution on water and sanitation
4.
Propose appropriate policy, legal and institutional changes
Methodology
The Task Force has adopted the following methodology:
1.
Carry out a desk study to identify achievements of the reform since the Water
Act 2002 and the outstanding and/or emerging challenges
2.
Examine the relevant provisions of the 2010 Constitution
3.
Conduct studies on a selected topics considered key: right to water; provision of
water in rural areas; institutional arrangements; and financing mechanisms
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4.
Formulate proposals which were subjected to stakeholder consultations
5.
Carry out revisions to the Water Act, 2002 and related water sector legislation.
Reform achievements
i.
ii.
iii.
iv.
v.
vi.
vii.
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In line with the Water Act 2002, water resources management separated from
water services provision.
Provision of water services has been ring fenced and is undertaken through
autonomous and commercial entities.
Functions have been decentralized and devolved to regions and catchment areas
Independent water sector regulators have been established.
Stakeholder participation has been enhanced through WRUAS.
A dedicated pro-poor financing mechanism has been established
Arising from these reforms the sector has been able to attract more resources.
Challenges
i. Transfer of functions to newly established institutions yet to be completed.
ii. Viability of many water service providers remains questionable.
iii. Perception of an overload of institutions which appear to duplicate each other’s
mandates (e.g. WSBs and WSPs; WRMA and NEMA over catchment management
etc)
iv. Lack of clarity in the policy institutional arrangements for and inter-relations with
sector arrangements for water storage, irrigation and land rehabilitation.
v. Lack of an overall financing mechanism for the water sector and for water
resources management specifically.
vi. Poor governance practices generally in WSPs.
vii. Limited appreciation of the role of independent regulation in the sector.
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The 2010 Constitution: Key provisions
1.
Devolved government: Constitution creates two levels of government - a national government and
county governments - and assigns them functions (Sch. 4)
2.
Cooperation: Article 189(2) states that Governments at each level, and different governments at the
county level, shall co-operate in the performance of functions and exercise of powers and, for that
purpose, may set up joint committees and joint authorities.
4.
Water resources: Water is defined as part of land. In Art. 260 “Land” is defined to include “any body
of water.” In Art 62 “Public land” is defined to include all rivers, lakes and other water bodies
5.
Water resources management: Art. 67 establishes the National Land Commission established to
manage, inter alia public land.
6.
Regulation of land (defined to including water resources) is dealt with in Article 66(1): “the State may
regulate the use of any land, or any interest in or right over any land ….”
7.
The use of water resources is also made a national function (Sch. 4)
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The 2010 Constitution: Key provisions
7.
Water services: Access to water is made a right: Under Art. 43(1) Every person has
the right
…(b) to accessible and adequate housing, and to reasonable standards of
sanitation; & (d)
to clean and safe water in adequate quantities..”
8.
Regulation of water services: This is not explicitly provided for but can be seen as a
necessary part of consumer protection, a national government function (Sch. 4)
9.
Revenue allocation: National Government 85%, counties -15% (minimum) (Art.
203). An Equalization Fund equivalent to 0.5% of national revenue is also
established to provide basic services including water (Art. 204).
10. Infrastructure development – a shared function: National government may
undertake “public investment” and “hydraulic engineering” while counties may
undertake ‘county public works.” (Sch. 4)
11. Dedicated funds: National government may by law set up dedicated funds outside of
the Consolidated fund – e.g. a water sector fund(s) (Art. 206)
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Proposed institutional changes
Level
Policy
Current status WA 2002
Proposed New Mandates
Potential Benefits and Risks
Ref. NC
MWI in charge of policy
formulation, resource
mobilization and sector
coordination
•
Policy formulation, resource mobilization and
sector coordination either as standalone
ministry or department in case of merger with
other ministry
Establish County Water Advisory Office
(CWAO) to advice on policy and coordination
of water affairs at county level
BENEFITS: Lead agency on water
affairs retained promotes uniformity
(policy, M&E, annual reporting etc).
CWAO limited to advisory role in
line with the Constitution
Cabinet, Art. 152
Support for
county govts, Art.
190; The 6th
Schedule, Article
262, section 15
The 4th Schedule
Part 1, 32
•Separate regulation from water resources
management but continue catchment based
approach to regulation and management of
water resources.
BENEFITS: Separates
regulation (WRR) from
implementation
(management);
Enhanced role for CAAC
through input by County
Govts and other stakeholders;
Staff issues addressed;
•
Water
Resources
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Core functions:
water allocation;
planning and
enhancement of
water availability;
regulation and
protection of water
resources; and
information on
water resources
•Transform national WRMA into a Water
Resources Regulator (WRR) but retain
catchment based approach to regulation.
•Assign water resources management (e.g.
catchment management) to National Land
Commission and counties.
RISKS: Dominance of lead agency
NLC neglects water
resources mandate &
counties lack capacity
Art. 186
(functions and
powers of NG
& CGs); Art.
189
cooperation
NG & CGs);
Art. 191
(Conflict of
laws); The 4th
Schedule Part
1 – 2, 22, 24
Proposed institutional changes
Level
Current status WA
2002
Proposed New Mandates
Potential Benefits and
Risks
Ref. NC
Water
Storage &
Irrigation
WA2002 gives it
responsibility to
NWCPC for state
schemes and it is
currently involved in
developing multipurpose dams, dykes,
ground water recharge,
boreholes and bulk
water supply facilities
i. Establish a National Water Storage Authority
(NWSA) with mandate to for water storage
through large and medium multi purpose dams
BENEFITS: Clearly spelt out
mandate avoiding duplication;
Avoids staff lay-offs;
Regulation by WRR on dam
design, safety standards
Implementatio
n of rights and
fundamental
freedoms, Art.
21, sub section
2
The 4th
Schedule Part
1 – 22, 24 etc
Water
services
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ii.Subject NWSA to regulation by Water
Resources Regulator (WRR)
iii.Establish irrigation agency to take over mandate
of facilitating irrigation and land reclamation
Currently provided
1.Transfer water services functions to
by Water services
county owned WSPs.
boards (WSBs) 2. Infrastructure development: (a)
regional bodies
where undertaken by by counties then
responsible for
assets owned by county WSPs (b) where
planning,
undertaken by more than one county, as
investments, services in cross county pipelines, assets vest in a
provision;
joint authority set up by the counties
concerned;
Water services
(c) where undertaken by the national
provided by local
government, as a public investment, assets
authority WSPs
vested in a regional state corporation
agents of WSBs
established by national government.
RISKS: Proposed NWSA takes
over staff from NWCPC which
may suffer from legacy issues.
BENEFITS:
1. Flexible arrangement
caters for different
circumstances.
2. WSB staff moves to
successor bodies;
3. Ring fenced & clustered
WSPS ensures commercial
viability
RISKS: Destabilizing effect
on recently established
institutions; Lack of clarity
on where to place reserve
capacity for intervention
Articles 20
and 21,
The 4th
Schedule
Part 1 – 33
Proposed institutional changes
Level
Current status WA 2002
Proposed New Mandates
Potential Benefits and Risks
Ref. NC
Water
and
sanitation
in rural &
other
unviable
areas
Low coverage and non
sustainability of services
i. Place mandate of rural (unviable)
WSPs water at County
Government level with support
from Ministry through the County
Water Advisory Office (CWAO)
ii. Establish County Water and
Sanitation Forum (CWSF) as a
think tank for negotiation and
dialogue on matters of rural
(unviable) water and sanitation
services
BENEFITS: Flexible approach allows
adoption of diverse local solutions;
The 4th
schedule Part
2, 11
Articles 21,
27, 43 etc
• Retain water services regulation at
national level including monitoring
assets development, equitable
investments across counties and
governance standards for WSPs.
• Query whether regulation of
services should be combined
with regulation of resources.
BENEFITS: Enhanced regulation
(licence/contract,) performance
monitoring and audits including public
reporting ensures delivery
Regulation
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Provision by noncommercialised entities
(community run) with
limited capacity
WASREB develops and
enforces rules designed
to regulate the provision
of water and sewerage
services while WRMA
regulates resources
Enhance role of County Govts and
stakeholders to plan for investments;
Professional backstopping introduced;
RISKS: Neglect by county govts more
concerned about visible projects
RISK: Limited acceptance about
autonomous regulation limits
effectiveness
Article
191;
Article
21(2)
Proposed changes
Level
9. Financing
Mechanism
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Current status
WA 2002
MWI finances
major
investments
while the
WSTF provides
the pro poor
funding
Proposed New Mandates
1. All proposed institutions to be self
sustaining on recurrent expenses.
2. On capital investments :
i. National government to finance
major investments (e.g. cross county
pipelines) as national investments;
ii. National government to on-lend
to county WSPs for capital
investments subject to on-lending
agreements
iii. Counties to invest and lease to
WSPs
iv. Continue pro poor financing
through a fund such as WSTF linked
to the Equalization Fund
Potential Benefits and
Risks
BENEFITS:
1. Flexible financing
arrangements able to
mobilise resources
from several sources.
2. Viable entities required
to back through onlending arrangements
RISKS:
• No clear window for
financing water
resources
• Funding through
Exchequer might not
be attractive to
development partners.
Ref. NC
Article 20,
Article
201, 202,
203, 204
etc
The 4th
Schedule
Part 1, 33
Local level
Regional
level
National level
Future Outlook
WAB
Dispute Resolution
KEWI
Training & Research
WSTF
Financing
NIB
Irrigation services
Policy, sector
coordination &
Financing
MWI
WRR
NWSA
WASREB
WSPCs
CAACs
6 CAACs
Water Resources
User Associations
WRUAs
WSPs (Urban)
COWSOs (Rural)
Consumers, Users
Regulation
Planning &
development
Service
Provision;
Investment
Planning
Consumers;
Users
WRR = Water Resources Regulator; sub sector regulator to licence and regulate NWSA
NWSA = proposed National Water Storage Authority responsible for planning, supervision of construction, O&M of dams, flood control and
ground water recharge infrastructure
CAACs = CAACS responsible to advisory input in a catchment basin;
WSDB = proposed Water Services Development Board to be the asset holder for cross county schemes
COWSOs = Community owned water supply organizations
= Regulation/Licence
WSPS: asset owners and service providers at county level
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Work plan
Sept ’10 – Jan ‘11
May – July ‘11
TASK FORCE
MEETINGS &
STUDIES
CONSULTATIONS
Internal
Stakeholders
WSIs, WSPs etc
1.
2.
3.
4.
5.
6.
Concept paper
Right to WSS
Rural WSS
Institutional framework
Financing Mechanism
Quality Assurance
(ongoing)
7. Amendment proposals
INITIAL IDEAS ON
PROPOSED
AMENDMENTS
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July – October 2011
CONSULTATIONS
External stakeholders
Institutions; Public;
Development Partners
etc
REPORT OF PROPOSALS TO ALIGN
THE WA ’02 TO CoK 2010
Input from
stakeholders:
DPs, Civil Society,
etc
LEGAL
DRAFTING,
QUALITY
ASSURANCE
BILL, 1st DRAFT
Harmonization
with other laws.
Input of Kenya
Law Reform, AG’s
Office, CIC, other
sectors
NATIONAL
CONSULTATIVE
FORUM
BILL
BILL SUBMITTED
TO CIC
The End
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Back-up: Extract from Interim Report on Devolved Government by the
Task Force on Devolved Government (TFDG), April 2011
Page 55: Effective local economic development requires planning and management of a number of development activities across sectors and counties. The importance of this factor
came out during public hearing with many Counties beginning to close up on their resources, or contending that fees have to be charged for use of resources originating from their
Counties. One example of such a resource is water serving major cities with sources outside respective cities, and by extension Counties.
Page 56: Effective cross county planning and service delivery requires cooperation and consultation mechanism as provided for in Article 6(2) of the Constitution. This requires a
national legislation and policy that will ensure that effective participation and management of cross cutting resources such as water, roads and electricity are planned in an integrated
manner. Section 189 (2) provides the legal framework for the cooperation across Counties noting that `different governments at the County level, shall co-operate in the
performance of functions and exercise of powers and, for that purpose, may set up joint committees and authorities’. Legal basis for cross county planning services are implied in a
number of Constitutional provisions. Article 66 (1) & (2), 69 (a) & (b) etc
Page 57 & 58: Water is a good example of a service which is often provided under the cross county concept. Currently, the Water Act provides a framework for the management
and provision of the water services. Under the Act the Water Boards manage the water services through policies and regulation, while actual delivery to consumers is done by the
water companies owned by LAs as provided by the law. The same framework can be used where two counties or more come together to provide a service through a common board
or company. In such cases a cross county company can provide a common service. Alternatively, a national legislation can provide a framework for a board to provide policy
framework and regulation. The membership of such boards should include representative of the counties and national government. Apart from water other cross county sector and
services include: transport, tourism, electricity, markets, housing, and energy. As highlighted in the case of water, planning for transport, housing, and energy is better done by
specialized boards for and on behalf of the affected counties. This situation becomes more necessary when specific service is being consumed across counties or cities.
Section 189 (1) notes that cross county cooperation ensures and enhances articulation and implementation of national government policy. The second provision (2) provides for
cooperation for effective service delivery. The provision states that governments at county level are supposed to cooperate and create joint authorities and committees with the aim
of performance of certain functions. The joint performance of functions has cost benefit effects, including economies of scale.
Section 189 (1) notes that cross county cooperation ensures and enhances articulation and implementation of national government policy. The second provision (2) provides for
cooperation for effective service delivery. The provision states that governments at county level are supposed to cooperate and create joint authorities and committees with the aim
of performance of certain functions. The joint performance of functions has cost benefit effects, including economies of scale.
One of the principle considerations for intergovernmental relations is economies of scale that accrue when providing trunk/bulk infrastructural services. This affects provision of
water, roads, bridges, power among others. This implies that the production, provision and transmission of some services would transcend county boundaries and have to be
negotiated appropriately with the objective of enhancing capacity and providing services efficiently and cost effectively. Citizens across counties require services as a basic right as
contained in the Bill of Rights. However, some of such services may not be available within their counties. To provide such services, it is necessary that resource mobilization is done
collectively in order to efficiently produce and deliver the services.
In line with the discussion in this section, there is need for policy direction on how services which cut across Counties will be provided and managed. While this option could be left
to the discretion of the County governments, it will be useful for national government to provide guiding principles to assist counties in making decisions. This should also include
providing an appropriate framework for preparation of and implementation of integrated national, regional and local area land use plans that meets needs of stakeholders across
counties. Further, there is need for facilitation of appropriate institutional and technical capacity building initiatives for accelerating plan implementation at all levels.
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