Water Sector Reform | The Water Page

These notes are to assist in the process of developing a program for the review and reform of water resources management in at national level. They should be read in conjunction with a number of other related documents including the detailed program suggestions, the Guidelines to the Policy Matrix and the Policy Development Guidelines.The purpose of these notes is to act as a guide and advise only. Each country which embarks on such a program sets out on a unique path which is determined by its own particular circumstances. It is ill-advised to attempt to duplicate the process or content of a reform process which is undertaken by any other country, how ever successful that process may have been for them.Notwithstanding the point made above, it is helpful to have the benefit of international experience as a resource when undertaking a sector reform programme. These notes are compiled by Len Abrams who has had extensive experience in a variety of different African countries with the development of water policy and reform strategies, in conjunction with other staff of the World Bank.There are several factors which are critical to the process and outcome of reform in any context.Reform is a necessary and ongoing process. The undertaking of a process of reform in any sector is an ongoing and necessary activity in any government and does not imply that the sector has been poorly managed in the past.It is primarily a political process. The reform of any sector is primarily a political and not a technical process although high-level technical skills are a requirement for adequate and successful reform. Without a high-level political mandate to undertake reform, it will generally not be possible to “follow-through” with the necessary changes which will inevitably be called for in policy, legislation and institutional arrangements. Such changes may have impacts on current arrangements and systems of political hegemony. Not only within government itself is reform a political activity but also in the relationship between the use and management of water resources and the general population, in particular specific user groups such as agriculture and industry. The management, development, utilisation and protection of water resources impacts upon the lives of all citizens and is therefore primarily a “people” activity rather than a technical activity. Making use of “windows of opportunity”. There are often unique periods in a country’s history when reform is easier to achieve than at other periods. It is important to make use of such “windows of opportunity” when the prevailing political atmosphere enables large steps forward to be made. An example is the recent complete revision of water policy and legislation in South Africa which was made possible by the introduction of a new democratic political process. Such windows of opportunity do not generally last very long, making it is important to capitalise on them as much as possible. It is clear that such a window of opportunity presently exists for the reform of water resources management in a number of countries in, particularly in the developing world.Internal affair. It cannot be stressed strongly enough that the process of reform is a national sovereign matter which must be undertaken by national experts. Although use may be made of international experts and consultants, the final content of policy and legislation must be determined by the country concerned. There have been numerous experiences where policy and legislation have been developed by outside experts which does not adequately address the circumstances (social, political, cultural and hydrological) of the country concerned. The usual result of these activities is the failure of the implementation phase of the reform process. Such failures tend to undermine confidence in the sector and in the government.Process as important as the output. It is important to recognise that the process of reform is as critical as the outputs if reform is to be implementable and is to achieve long-term effects. It is therefore critically important to design a reform process very carefully so that the process itself promotes the key values of the intended output. For example, it is unlikely that a transparent, people friendly and effective institutional arrangement will be delivered by a process which is closed, lacks transparency and does not involve ordinary people. Shortcuts should not be taken which will truncate the process, even in the face of the pressure of parliamentary schedules, legislative timetables etc. It is for these reasons that key political players should be party to the planning of the process so as to ensure their commitment to the process as well as the outcome.Building a legacy for the future takes time. A thorough and successful reform process is one which builds a legacy for the future which should stand the country in good stead for 20 to 30 years to come. It is therefore important to ensure that sufficient time and resources are invested in the reform process to ensure that, apart from inevitable occasional amendments, the resulting policy and legislation will stand the test of time and will ensure that the country’s water resources are properly managed, developed and protected in the interest of its citizens of present and future generations.A whole-government process. Although a reform process may be led by a particular Ministry, reform is a process of a government – not an individual ministry, and inevitably involves a number of different inter-related ministries. It is therefore important at the outset of a reform process that the cooperation and involvement of related ministries is sought and obtained. Such cooperation requires political consent and may be difficult to achieve where there are areas which are politically contested, even if they have nothing to do with water.Figure 1 represents the governance cycle which is conceptually simple but is very complex in execution – it is a simple representation of a very complex process. It should be noted that this cycle applies to all sectors and is equally applicable to water resources management as it is to health, the justice system, education etc.At the outset it is important to stress that the activities of the governance cycle as applied to any particular sector such as water resources management need to fit within the national development framework. Reform in any given sector needs to be consistent with overall development and macroeconomic policies (such as policies to introduce greater private sector involvement and decentralisation) and it must be consistent with the country’s Constitution. However, it may need at times to call for bold changes which may require a reassessment of certain national policies.The cycle should be seen as dynamic and not rigid. No reform process happens within a vacuum – there is always a history and a context. Therefore there may be certain elements which require urgent review and which cannot wait for the full cycle to take its course. However, piecemeal reform of different sections of a sector which are undertaken without regard for the whole may work against the establishment ultimately of an integrated water resources management system. The cycle is dynamic in that once a reform process has been undertaken the sector requires ongoing review which may in turn lead to new policy development, legislation etc.3.1 Explanation of each phase3.1.1 Review phase.The first phase of a reform process is to review the current situation in any given sector and, through the use of national experts and broad consultation, to identify strengths and weaknesses, and areas which require attention. The review process provides a “snapshot” of the sector in the country which is necessary before the next phase of policy development begins. The review phase will often be divided into several different thematic areas which, in the case of water resources management, may include such themes as:Agriculture water use,The environment and water conservation,Institutional arrangements,Social and cultural factors,Water economics and the engagement of the private sector,International waters,Groundwater,Water quality and pollution,Industrial and other water users,Domestic water supply and sanitation,Water resources infrastructure and assets,Others, etc.The interface between the review phase and policy development phase is an important part of the reform process. It is necessary to capture the key policy areas identified by the review process. Based on the experience of several African countries, the use of the “policy matrix” has been found to be very effective. The policy matrix and how it is best applied is described in the “Guideline to Preparation of a Policy Matrix”.3.1.2 Policy development phase.The policy development phase is the most important phase of the reform process. The review phase leads to policy development which provides the basis for legislative and institutional reform, and the preparation of strategic water resources development plans. [Refer to Policy Preparation Guidelines.]It is important to have a clear understanding of what policy is and what it is not.Policy is the set of decisions, made ultimately by the highest political level in a country after a process of dialogue and consultation, which determine what and how things will be done in any given sector. Thus each country needs macro-economic policies and sectoral policies such as an education policy, a health policy, a housing policy, a water policy etc. Policy sets out the framework for the sector – the guidelines as to how development should take place and how the environment should be protected.Policy, once adopted politically, provides the mandate for the civil service – a government departments’ role is to implement the policy.Policy is often confused with implementing strategies. Although strategic planning may have implicit elements of policy in it, it is not policy but rather a plan of how to implement policy. For example, “the precautionary principle of pollution control shall be adopted” is a policy statement. (It requires industrialists and other potential polluters of water to prove that discharges are not harmful to the environment and to public health before discharges are made, rather than requiring the responsible authority to prove actual damage and harm after discharges have been made.) Such a policy statement has far reaching implications but it does not provide an indication of how it would be implemented. A process or plan of how to implement such a policy would constitute the strategic planning component of water resource management. It is important that policy is developed and adopted first, and that thereafter other activities such as planning and socio-economic strategy development are undertaken or reviewed in terms of the policy. This will ensure greater consistency in planning and greater success in project implementation.It is not suggested, however, that current development undertakings should be delayed or suspended until policy is adopted, but rather that existing strategic plans should be reviewed in the light of new policy developments as they emerge.Policy should also not be confused with legislation. Once a policy has been developed and adopted, the legislation needs to be examined to see where amendments and changes are needed so that the policy can be implemented.There may also be instances where policy is not legally possible in terms of existing legislation, a country’s constitution or conflicting macro- or sectoral policy. It is therefore important that during any policy development process, consideration is continuously given to the legal implications of proposed policy and the consistency between the emerging water policy and the policy of other sectors.The policy preparation process is often divided into two phases, the first being the preparation of overarching policy principles and the second the preparation of detailed policy. The development of overarching policy principles assists in setting the foundation for the very complex process of developing an entire national water resources management policy. Policy principles should be restricted to 20 to 25 in number and should cover key policy perspectives in the major subheadings in water resources management such as:Legal aspects of water – who owns water and how is it distributed and utilisedThe water cycle – integrated water resources management integrating surface water, groundwater, catchments and land useWater uses – agriculture, industry, tourism etcThe preservation of the environment as the source of water – abstraction control, water quality, pollution controlThe development of water resources – infrastructure development and asset managementThe economics of water – water pricing (if appropriate), financing water resources management, the role of the private sectorWater institutions – federal and state institutions, user engagement, basin organisations; roles, responsibilities and authorityWater services – including water supply and sanitationThe development of policy principles should be accompanied by a thorough public participation process, the main elements of which are described in detail below.The second stage of policy development is the drafting of detailed policy. This stage brings together the policy principles, which are broad in nature, and the details derived from the sector review phase. For the development of the detailed policy, refer to the Policy Development Guidelines (separate document).The policy development process should enjoy the patronage of senior government ministers in affected ministries and should be steered by senior public servants such as Permanent Secretaries or senior Directors. Provision should be made for an array of stakeholders to review and comment on both the process and content of the policy as it is developed.3.1.3 Reform phaseThe reform phase is when the implications of the developed and approved policy are applied to existing legislation and institutional arrangements, and to the planning of water resources management activities, investments etc.Legislative reform. With the background of the review phase and the detailed national water policy as a mandate to a specially appointed legal crafting team, it is possible to review current legislation relating to water resources management and associated law in a holistic and rational way. In many instances significant amendments to existing legislation will be necessary in order to implement the policy and in some instances it may become apparent that it would be preferable to rewrite water related legislation entirely, as was found to be the case in South Africa. This is particularly the case where laws are based on inherited colonial legacies. Specific attention should be given to the consideration of customary water law and its integration into the formal legislative regiem.Ad hoc piecemeal amendments to legislation during the course of the reform process should be avoided if possible. Where this is not possible and amendments to existing law and regulations are urgently needed, these should be done very carefully within the context of emerging policy so as to avoid duplication of effort and possible embarrassment to the government. Public comment and participation is essential during the development of new legislation.Institutional reform. Changing government and para-statal institutions is an intricate and difficult task. It is very possible that a new national water policy will set out a preferred institutional arrangement for the management of water resources in the country. It is imperative that clarity is achieved with regards to the function and authority of each institution engaged in water resources management in all levels and spheres of government including at federal, state and local levels. In some instances institutional reform will be in response to broad national policy developments such as decentralisation and the engagement of the private sector. Great care should be taken when institutions are changed to ensure that they are not rendered more dysfunctional at the end of the process than they were at the beginning.Institutions are made up of people and therefore any amendment to institutions is a complex political process where changes which may be in the national interest are not perceived to be in the personal interest of current incumbents. Institutional change may therefore meet significant resistance from within and needs to be very carefully undertaken in a way which involves as many of the affected parties as possible. “Change Management” is a specialised activity and it is advised that where institutional changes are undertaken, specialist advice and support is used. It is not simply a matter of changing institutions but helping the people who work within the institutions to gain a new vision of the role of the institution and of their personal contributions and careers.Tensions and competition between different government departments and ministries is common. Where the existing legislative and institutional environment has led to confusion and duplication of roles between departments and between different levels of government it is critically important that all affected parties participate in discussions which are aimed at rationalising and improving the situation. Clear political leadership will need to be exercised at executive level where agreement cannot be reached at Department level.Clarity of roles, authority and responsibilities is even more difficult in federal systems where there needs to be a clear distinction between national and state-level institutions. Again, this calls for a great deal of dialogue, particularly during the policy formulation period so that broad determination of responsibilities and roles can be incorporated into national policy which will guide the legislative and institutional reform processes.Institutional reform should include the roles and functions of non-government organisations such as user groups, farmers, industrial interests and consumers in general. Institutional arrangements should include para-statal organisations such as water boards or river basin committees where they exist. As far as possible users should directly represent their own interests.The reform of water related institutions should provide for and encourage the development of new and evolving technical strategies to improve knowledge of water and the use of appropriate technologies. Institutions should not be resistant to new innovations in economic and financial policies regarding such matters of watr pricing transfer and the development of such mechanisms as public /private partnerships.Strategic planning for water resources development, protection and utilisation. With a viable and implementable national water policy and with reformed legislation and institutions, far more effective strategic planning for the development, protection and utilisation of water resources is possible. Planning should be undertaken in the same spirit as the reform process itself, i.e. a spirit of transparency and co-operation which attaches high regard to the inputs of all stakeholders. The scale of water resources management activities should not be underestimated – it is multi-level and multi-sectoral which needs the correct determination of the most appropriate level of decentralization and allocation of functions.Strategic planning outside of the context of a national policy and without efficient and well motivated government and other institutions is unlikely to be implementable. An integrated and inclusive strategic planning process for the nation’s water resources is a complex process in itself which needs to be carefully planned.3.1.4 Implementation phaseThe implementation phase is the proof of the entire reform process. Throughout the policy development and reform phases attention needs to be continuously given to determining what is implementable and practical. It may well not be possible to implement all new policies immediately. In some instances policy options may need to be tested through the use of pilot programmes. New measures may be introduced gradually either in different phases over time or in different parts of the country (for example, in federal situations certain states may be ready and able to implement earlier than others). Barriers to implementation may result from a number of factors:Technically inadequate policy,Socially and culturally unacceptable policy,Economically infeasible policy,Policy which makes too great a demand on available human resources,Policy which goes counter to constitutional requirements,Policy whose implementation is blocked by other government departments because of lack of coordination and consultation,External factors such as poor public servant morale or public resistance.3.2 Review cycleImplementation needs to be continuously monitored and evaluated – after a reasonable period it will be necessary to review the national policy and water resources management legislation. The governance cycle is thus an ongoing dynamic process.During the course of the reform process there are a number of key issues which cut across all phases and activities. Some of these have already been mentioned but because of their importance they are emphasised again below.4.1 Intra-governmental interactionBased on the experience of several countries in Africa and elsewhere, one of the most frequent causes of failure to wholly or partially implement reforms is a lack of coordination, understanding and interaction between different government ministries and departments. Unless it is specifically planned for and avenues of dialogue are purposefully opened, it is often the case that different ministries which have overlapping or at least complimentary functions and responsibilities work in isolation from each other. A common example are the ministries responsible for water resources management and the ministry responsible for the largest user of water, agriculture. A principal worth considering in this regard is to ensure that the “referee and players” are separated – for example ensuring that one ministry is responsible for resource management and regulation whilst another is responsible for resource use. Clear political endorsement and leadership at the highest level is required to ensure that adequate intra-governmental interaction happens.4.2 Public awareness & participationThe importance of public awareness and the participation of stakeholders cannot be over emphasised. Whilst it is possible for a Department or ministry to develop national water policy and new legislation in isolation, it is very unlikely that the results will be implementable and enforceable, respectively. This is primarily because the main implementing agents in the long run are the users of water and not the government itself. Not only will implementation not be possible if users have not been consulted but the policy itself is unlikely to be sound. Local people, farmers, industrialists, environmentalists and civil society in general who use water every day in their particular fields have practical experience of what works and what does not work and this experience is invaluable in the preparation of policy.As has been stressed in the document above, the process of reform is as important as the product if good water resources management is going result. The reform process, of which public participation and awareness creation should be a major part, therefore needs careful planning and the allocation of adequate resources. Awareness creation and participation should not be rushed and shortcuts should not been sought. This has been a repeated lesson in the development of policy in a number of countries.4.3 The particular role of womenA great deal of attention has been given to the role of women in development over the past few years. Many people remain somewhat sceptical about the importance of this issue and often regard it as an emphasis which is imposed from outside and is a “necessary evil” which needs to be accommodated. However, not ensuring that the voice of women and their management abilities contribute to the development of policy will inevitably result in a weak policy and a less than optimum reform process because women play a major role in many aspects of water management, from the micro- situations of the home to the role which women play on a daily basis in agriculture. Therefore, special effort and consideration needs to be made in order to ensure that women play an adequate role.4.4 External expertiseAs has been stressed elsewhere in this document, it is critically important that a reform process is motivated, managed and run by professionals and experts from the country concerned and not by outside consultants, development agencies etc., no matter how well-meaning this may be. There are several cases in Africa where substantial input has been made by foreign sources which have inevitably been based upon their experiences within different sociological, hydrological, economic and political environments with the result that some of the policy and reform measures are inappropriate and ineffective. This does not mean to say that foreign expertise has no contribution to make to a reform process. It would be equally unwise to undertake a reform process which is entirely closed to outside influence. The key factor is to ensure that the final judgment is made by knowledgeable local expertise and to ensure that policy and legislation is suited to the unique national circumstances of the country under consideration.These notes have been drafted in order to assist the preparation of a full reform programme of the water resources management function in specific countries. This document should be seen as one in a series which will include the guidelines for policy document formulation, the guidelines for the policy matrix preparation and the program plan for the implementation of a reform process. The program plan should be developed in detail with broad discussion amongst at least an initial group of stakeholders.