The water sector reforms includes the development and implementation of unbundled intergovernmental and institutional mandates coupled with fulfilment of legal requirements in line with the Constitution and Water Act. The current water sector reforms, formally commenced in April 2017, after the Cabinet Secretary for Water published notices in the Kenya Gazette, announcing the commencement of the Water Act, No. 43 of 2016. The enactment of the Water Act by Parliament anchor the water sector reforms. This is primarily because the Water Act provides for the prioritized implementation in fulfillment of the new Constitution that was promulgated in August 2010. The Water Act provides that the reforms should be concluded in a period of 3-years, that is from 21st April, 2017 until 20th April, 2020.
Water sector reforms is therefore about the planning, implementation and reporting of the changes in the legal, sectoral policy and institutional frameworks emanating from the Constitution, 2016 Water Act, and a new National Water Policy.
Key changes in the legal, policy and institutional frameworks
- National government has the obligation of establishing a durable system for sustainable management of water.
- Devolution of certain water sector mandates is a major change in the water sector governance framework. This requires implementing the constitutional provisions that devolve water supply and sanitation to county governments; and further, providing guidelines how counties can implement national water law and policy concerning soil and water conservation.
- The management of the relationship between the national government and institutions with county governments is important. Under the Constitution, consultation and cooperation is undertaking mandates is urged (article 6); and where necessary the establishment of joint mechanisms is promoted by the Constitution. (article 189). For this reason, the Ministry of Water and the Council of Governors have agreed on an Intergovernmental Water Sector Coordination Framework which is pending implementation.
- The delivery water supply and sanitation (sewerage and non-sewer) will be undertaken by counties through Water Service Providers (WSPs) that are county owned and regulated directly by the Water Services Regulatory Board (WASREB). This is a departure from the previous dispensation where WSPs were licensed as agents of Water Service Boards (WSBs). The WSBs were under the Water Act 2002 licensed by WASREB and were responsible for asset development and in most instances, provision of bulk water.
- The WSBs are to be replaced by Water Works Development Agencies (WWDAs) whose main mandate is development of cross-county water services infrastructure. They are also required by the Water Act to handover the completed assets to a county, several counties or a Joint Authority for operations. “Handover” in this sense means the transfer of the asset(s) and contingent liabilities to counties/joint authorities under terms and conditions that will be determined as part of the water sector reforms and clearly set out through regulations, and as part of a Water Sector Transition Plan, and Transfer Plan and further backed by a national Water policy.
- The Water Act scope includes water resources management, institutional arrangements and regulatory management tools.
- The Water Resources Management Authority (WRMA) is to transit to the Water Resources Authority (WRA). The Catchment Area Advisory Committees (CAACs) have been replaced by Basin Water Resources Management Committees (BWRCs).
- The Water Act establishes Water Resources Users Associations (WRUAs) unlike before when they were established through regulations. The mandate of BWRCs however still requires clarification through amendment of the Water Act including how to carry out their mandate.
- The Water Act has not provided the manner through which counties exercise their mandate on water resources as stipulated by the Constitution.
- Water harvesting and storage has been set out as a major priority to enhance the national water storage capacity through the establishment of the National Water Harvesting and Storage Authority (NWHSA). NWHSA will undertake this mandate on behalf of the national government, including the provision of water during drought emergencies.
- In implementation of water sector reforms further guidance will be provided on how to enhance water harvesting and storage at small, medium and large scales including leveraging on rainwater harvesting at household level to relieve pressure on freshwater sources. This is in addition to treatment and re-use of storm and waste water for various acceptable purposes. Linkages with counties will be pursued for issuance of development permits, so that rainwater harvesting, for instance, becomes a prerequisite in provision of building permits.
- There is renewed focus on sanitation services which includes sewerage and non-sewerage services. The provision of reasonable standards of sanitation is a human right under the Constitution. In addition, the overall national coverage through conventional sewerage systems remains low and is primarily focused on urban areas. Where feasible, the water sector reforms will promote the use of affordable non-sewerage technologies, such as those that also recycle waste water for prescribed uses. Measures are to be taken to continue public investment in conventional sewerage systems.
- In the water sector reforms, the Constitution will remain as the reference guide for all actions to ensure full and complete constitutional compliance. Therefore, specific attention is being paid to mainstreaming gender considerations in all processes and decision making; and implementing affirmative action for vulnerable members of the population, and for the youth.
- The Ministry of Water has prioritized implementation of the Climate Change Act, No. 11 of 2016, which requires mandatory mainstreaming of climate change interventions for adaption and mitigation by all sectors, including water. This includes implementation of the National Climate Change Action Plan (NCCAP).
- The Ministry of Water also prioritizes water sector education, by putting in place policy directions to work with the Kenya Institute of Curriculum Development to mainstream water sector education across the nation basic education curriculum The priority is to transition the Kenya Water Institute into a Centre of Excellence for water sector professional and technical training.