WAWERU SAMMY MWANGI

C50/77499/2009
MA: CPS 665 ADVANCED PUBLIC POLICY ANALYSIS
INSTRUCTOR: RICHARD BOSIRE DR.
PROJECT PAPER

INTRODUCTION

The sessional paper No. 1 of 1999 on water resources

management and development provided a policy guideline for

water sector reforms momentum in Kenya. The reform process

was culminated by myriad of changellenges facing water and

sanitation sub-sector. Water sector reforms were initiated to

enhance availability of water for economy growth reduction

and control of pollution improved living conditions for all

Kenyans and sustainability conservation of environment for

posterity and future generation (Ministry of water and irrigation

on news letters issue , June 2009). These reforms were

anchored on policy and enforced by legislation to enforce

compliance. Laws by legislation are part and parcel of public

policies enforced with support from executive and judiciary arm

of government. Policies in form of acts of parliaments involves

strict adherence as non compliance would invite sanctions as

prescribed in the said Act (Law).

In 2002 the water sector reforms momentum in Kenya

culminated to the enactment of the Water Act 2002 which was

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gazette in October 2002. The Act introduced new water

management institutions to govern water and sanitation issues

in Kenya. This project paper looks at Water Act 2002 as a

legislative policy and therefore is dedicated to the Act’s

evolution on and process within the policy cycle. The paper is

therefore divided into policy stages each with detailed account

of policy making processes.

The methodology of the project paper entailed sourcing

information from secondary data sectoral reports from the

stakeholders as well as physical visit where necessary; internet

sources will contribute immensely because of convenience

associated with it of access of information.

Problem identification

This life is a policy process emanates from the

acknowledgement of problem worth addressing. A civilized

society in a contemporary world has a number of mechanism

upon which intervention measures are appropriated. With

regards to this project what product did the Act seek to

address? Water acts 2002 came at the backdrop of the

sessional paper number 1. of 1999 on water resources

management and development. The papers objective was to

address water management and services delivery. These

objectives were mainly occasioned by the inability of the then

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existing arrangement of water services provision to deliver

and maintain basic water supply infrastructure for the growing

population and the need to have structured coordination of

various actors involved in the water sector. To address water

problem should be seen from the millennium developments

goals number seven as set by the United Nations .According to

John and Wegrich, problem recognition itself requires that a

social problems have been defined as such, and that the

necessity of state intervention has been expressed. (John and

Wegrich)

The government of Kenya through the Ministry of water was

set to attain set targets number seven of MGDs by the year

2015. Access to sustainable safe drinking water and sanitation

has been a challenge that that government has faced forced

that necessitated international standards that government

should commit themselves to. It should noted that , Kenyan’s

water resources were and are still threatened by pollution,

over exploitations and degradation of catchments areas that

the Act equally seeks to address.

Agenda setting

Water Act 2002 is an institutional formal agenda having been

put formed by the Ministry of the Water. Being an enforcer of

sessional paper number 1 of 1999, government had to

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prioritize the enforcement of the policy with legal backing.

From kingdom conceptualization of agenda setting the Acts can

be explained from the problem it was made to address, politics

and participants involved in the entire process (Kingdon 1995).

Problem recognition cuts across from within government, civil

societies and international organization as observed in many

other countries facing water sector problem. Increasing access

to safe drinking water and access to sanitation is worth noting

to the extend of it being enlisted as one of the major goal to be

achieved by 2015. The commitment of the government to the

international standards played of a key role in the prioritizing

issues related to water. It is therefore correct to argue that

international actors in the name of the United Nations’ played a

key role in bringing into focus the problem as observed in other

developing countries. From kingdon characterization Ministers

of the relevant ministries could be considered visible

participant for marshalling and guiding the agenda to

parliament and cabinet.

On the other hand hidden participant could conceived as

career bureaucrats within the Ministry of water, researchers

and academicians consulted for developing the Act for its

eventual debating. Worth to note is the role of donor agencies

that had taken lead role in some local government to

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streamline provision of water services .German technical

cooperation GTZ is highly noted for initiating water valued

project aimed at strengthening the management of water and

sanitation systems in selected local authorities (Asingo 2005)

Policy formulation

Policy formulation and adoption involved definition of

objectives and the consideration of the different actions

alternatives. At this policy cycle stage, problems, proposals and

demands are transformed into governmental action. (jann

wegrich 1995). The major problem was water resources

management and services delivery to the deserving citizens

who had hitherto experienced all kinds of water related

problem due to management issues. The problem in the water

sector was as result of inefficiency of local authorities in their

services delivery .Further to this was the role of ministry of

water in overseeing water related concern across the country

as well as lack of clear cut management system to ensure a

streamlined services provision. The objective of the Water Act

2002 was to decentralize the decision making process to

regional and local authorities, increase participating policy

making and encourage investment and development. The

responsibility of managing water resources and services

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delivery were split into separated bodies as are policy

formulation and regulation (TI and Water Development 2009).

At policy formulation stage, there are key players worth

acknowledging with respect to their role in the final document t

adopted. A ministerial bureaucracy in the ministry of water

played a key role a key role in policy formulation. The Act being

a law from a different perspective, invited input from the

Kenyan’s Attorney General in the drafting. It is seen here, the

executive arm of government played a leading role in policy

formulation. They are therefore be considered as the main

visible actors as observed from the public point of the view.

As a normal practice, the Act passed the five stages before its

adoption. Parliament input was critical as it was a key

determinant for the success or failure of this Act. What was in

this Act that was formulated? The object of the Act was to

provide for the management , conservation, use and control of

water resources and for the acquisition and regulation of

rights to use water, to provide for the regulation and the

management of the water supply and sewerage services and

to repeal Water Act ( cap 372 ) and certain provisions of the

local government Acts and for the local government Acts and

related purposes (Water Act 2992). In order to serve the

intended purposes, there was need for a provision to re peal all

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other Acts of parliament that were concerned with water

management in the country.

These Acts included the one within the relevant water in

ministry and one local government since they played a key role

in the water resources management and delivery at the local

level. The Act introduced a raft of measures which includes

creation of new management bodies.

This was in abid to allow the ministry of water to mainly

undertake policy formulation ,sector strategy, development,

research and training sector coordination planning and

financing (Ministry of Water and irrigation Communication

Issue 1 June 2009 ).

In line with water reforms policy documents parts III and IV of

the Act sets out two separate branches of the water sector.

Part 111 sections 7 of the Act creates a Water Resources

Management Authority as a cooperation body headed by a

chairman appointed by the president and the comprising of ten

other members appointed by the minister for water. The role of

WRAM is to develop principles and guidelines for water

resource allocation, regulate water source quality, manage

water catchments and determine changes to impose on use of

water from any source (Water Acts 2002). This is a provision for

the separation of management of water resources from that of

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water supply and sewerage. Section 16 of the Act creates

Catchments Areas Advisory Committees whose function is the

management of the water resources, conversation, use and

apportionment of water resources in a defined catchments

area. This is an advisory role to the water resources authority.

Section 47 establishes Water Services Regulatory Board

(WASREB). The board comprises of a chairman appointed by

the president and ten members appointed by the ministers for

water. The function of the Board is to license water providers,

handle consumer complains against licensee, develop

guidelines for fixing water tariffs and develop a model agency

agreement between local authorities and private water

companies.

Equally section 51 of the Acts establishes another set of

corporate bodies established Water Services Board. WSB have

delineated areas of supply to ensure the provision of services

to all parts of the country. The role of the Boards is to ensure

efficient and economical provision of water services to

specified geographical areas. To compliment the role of these

boards, section 55 establishes Water Service Providers who are

supposed to enter into agencies agreement with the board for

the purpose of the water services delivering to end customers.

.Another establishment within the Acts is the Water Services

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Trust Fund as enshrined in section 83. The mandate is to

mobilize financial resources for development and rehabilitation

of water and sewages services and infrastructure especially to

un-served areas. Finally is the water Appeal Board in section

84 whose mandates are conflict resolution within the sector

management.

Decision Making

Decision making with regards to water Act in a perspective of

policy cycle should be seen in an incremental and rationale

approach models. Incremental views of public policy is seen

as a continuation of past government activities with only

incremental modification(Dye 2008) instrumentalism appears

to the preferred option because policy makers generally accept

the legitimacy of the established program and prefer to

continue previous policies . With regard to water Act, it should

be noted that there was an existing policy frame work that laid

down the path upon which the Act would be anchored. This

should be seen in sessional paper No. 1 of 1999 that broad

objective that were to be captured in the Act. The Act would be

give a legal backing to earlier policy provision hence makes

them enforceable by law. Rational model can be observed from

decision reached after realizing that ministry of water and that

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of local government were not ideal managers in water

management and provision in isolation. Rationality here is the

creation of new management bodies and separation of

functions from the ministry to the established corporate bodies.

Implementation

Implementation is the carrying out of a basic policy decision

usually made in statutes (Sabatier and Mazmanian 1995). This

is seen as actual realization of a policy prescription in relation

to its objective. To achieve a policy objective, there are

various factors that come into play that may harness or hinder

the realization of the stated objectives.

The water Act was enacted in 2002 and commenced in the

year 2003. The minister concerned gazetted the envisioned

new water institutions in the year 2004 for their

operationalization in the year 2005. To date the

implementation process can therefore be assessed how they

have lived to the envisioned plan. The objective of the Act was

to introduce new institutions to address water resources

management that would in turn improve water services

delivering to the citizens. A look at the implementations

process proves that a number of envisioned institutions have

indeed been established.

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 As spelt out of section 8(i) of the Water Act 2002 Water

Resources Management Authority has been established whose

roles and responsibilities are as follows,

Planning, management protection and conservations of water

resources, as well as allocating and monitoring water

resources. Equally of its role and responsibility is protecting

catchments areas, enforcing regulations and control of water

use. Catchments Areas Advisory Committees have been

established at various regional levels. The established CAAAC

are:

• Lake Victoria South Advisory Board

• Lake Victoria south advisory Board

• Rift valley Advisory Board

• Athi river advisory Board

• Ewaso Nyiro Advisory Board

These boards are advising the Water Resources Authority at the

catchments level on the following:

a) Water resources conservation use and apportionment

b) Issuance, cancellation and variation of water permits at catchments

levels

c) Any other matter pertinent to the proper management of water

resources

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In the implementation process saw the creation of eight water

services Boards. These boards have been delineated in areas of

supply to ensure the provision of water services to all parts of the

country.

• Athi water services Board

• Tana water services Board

• Coast water services Board

• Lake Victoria north water Board

• Lake Victoria Northern water services Board

• Rift valley water services Board

• Tana Athi water services Board

The functions of WBS are outlined in the section 53 of the water Act

2002 are:

a) Efficient and economical provision of water survives as authorized

by license.

b) Custodianship of water services provision Assets.

c) Contracting monitoring and enforcing agreement between the

Board and water services provider in accordance with the regulatory

Board in the licenses.

d) Monitoring and acquiring assets, planning development and

management

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e) Ensuring efficient and economical provision of water services

authorized by the licenses

The provision of water services is to be actualized with

establishment of Water Services Providers which can be

incorporated companies, non government organizations,

community groups and persons registered under the societies Act

chapter 108 of the laws of Kenya. Water services providers are

now prevalent at all local authorities. This is true of Nairobi, Nyeri,

Kitale, Eldoret, among others in the name of a town city water

and sewerage company i.e. Nairobi City Water and Sewerage

Company. Their main role is to provide water and sanitation

services as well as to develop, rehabilitate and maintain water

and sanitation facilities of the respective boards in their areas of

justification.

The implementation process has equally seen the establishment

of water services Trust Fund as provided for the section 83 of the

Water Act 2002. The role of this body is to act as basket fund

through which government, donors and other organizations can

fund water and sanitation to benefit the poor and the

marginalized. Water Appeal Board as outlined in section 85 and

87 of the acts has bee realized. Its role and responsibilities is to

arbitrate water related disputes that may arise between the

sector institutions and customer or other organizations.

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Using Sabatier and Mazmanian conceptual framework of the

implementation process Water Act was affected by factors

intrinsic in the implementation process. In tracking the

management problems the operation to address the problem, the

new institutions have come to their full operations to address the

problem identified. Lead implementing agency i.e. the Ministry of

water has coherently structured the implementation process.

Establishment of one authority has led established of subsequent

one for coherent relations as they are mutually dependant on one

another. This can be conceived in the linkage from the Ministry to

national management bodies like water resources management

Authority to water services Board and eventually Water Services

Providers. This has created a hierarchical integration relation

among the concerned bodies. Since the enactment of the Act, in

deed the relevant concerned officials have shown full

commitment and support for the realization of the policy

objectives.

Equally is the fact of the availability of funds to set up and see

the operation of the agencies. Save for Water Services Trust fund

which has proved a cumbersome task to meet the needs of all

deserving citizens in the provision of water services. Never the

less this does not mean that the implementation process has

been a smooth ride there has been hindrances and challenges.

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One of them is claim of corruption allegation as reported in

section the media as new bodies go on in the procurement

processes. Another aspect has been the rationale for hiring top

managers to the new bodies which has been riddled with

appointment of political ‘correct’ personnel. All said and done if

worth to note that these bodies are up and running as intended

within the Act.

Monitoring and evaluation

From the study of policy processes, it is evident that policy

does not always achieve its intended objectives and at time

even produces unintended consequences (Theodoluo 1995).

Water Act 2002 as a legislative policy is equally faced with

these challenges. It goes further that policy evaluation involves

examining the consequences of policy action including whether

the policy has worked or not to address the stated problem.

The process of implementation of the Water Act 2002 is still on

going although it is well understood that monitoring and

evaluation can be undertaken during a policy cycle. The two

concepts, monitoring and evaluating are meant to measure the

success of the policy. Water Act brought far reaching reforms

that some have had impact on water services provision and

delivery. The envisioned management bodies have been

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 established in the hierarchical order, establishing new

management water bodies to the benefit of end users with

respect to water service providers. These are water companies

with autonomous private sector-like management institutions

to improve performance of water services delivery. According

to conducted research on water services delivery there is

improved level of services and access to water and sanitation

in major towns that have set up incorporated water companies

Ministry of Water and irrigation Communication Issue 1 June

2009).

There has been improved awareness on conservation to curb

wastage optimized abstraction and a stable long term water

availability. Ministry of Water and irrigation Communication

Issue 1 June 2009 ).

Private water companies have seen reduced un-accounted

for water, improved billing, better customer care and higher revenue

collection .Water Services Trust Fund has led to up –scaling of

access for marginalized groups through the community project cycle

and urban project concepts as national concept. Funds are being

utilized to provide the biggest impact on reducing poverty and

improving public health. The reform in a total has attracted more

resources to the sector from an annual budget of kshs. 2Billion in

2002, to about kshs. 24 Billion in 2009. As a regulating body, Water

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Services Regulatory Board showcases the performance of water

services providers annually. The introduction of comparative

competition among water companies is meant to ensure continuous

improvements in service delivery through publishing impacts

reports.

Through the Water Appeal Board has been affective conflict

resolution mechanism. This is based in number of cases dealt by the

board since its inception. The reform through the Act has led to

empowerment and capacity building of up to 20 Water Resources

Users Association to implement projects in water resource

management, with good examples being

• Kitimu Water Resource Users.

• Association in Tana catchments and Lake Bogoria Basin users

• Association in rift valley.

However with the entire positive attribute associated with the Act,

there a number of short coming that have emerged. .As a stated,

evaluation assesses and analyses the intended objectives and

unintended consequences of a policy. The Act has created too many

governmental institutions in the water sector. This has seen in some

cases function overlap as observed in Water Resource Management

Authority and Water Services Boards. (Asingo, 2005). Both of them

have powers to determine water charges yet they should function

independently. In section 73 of the Act, it allows licenser which is the

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Water Service Board to determine water services tariffs. This is the

potential cause of conflicts since it is the water service providers

who have best position to determine the cost to charge for the

purpose of cost recovering measures. Some analysts question the

basis on which the seven Water Services Boards have been formed.

Some Boards cover much wider area while others cover relatively

small geographical area. The new institutional arrangement

relegates ministry of local government in urban water services

provision. The incorporation of water companies are expected to

work closely with relevant water bodies within the relevant line

ministry of water. Once a local authority incorporates a water

company, it ceases to be part of the institutional framework or

observed in the Act not acknowledging local authority control of

these companies by virtue of controlling majority shares.

The evolution process of the water Act is on going and that this

stage there is no conclusive evidence whether the policy has

succeeded or failed. Most of the envisioned plans are still being

implemented in conjunction with strategic policy objectives. Major

actors in the water sector have been conducting evaluation on the

impact of the water act. The ministry of water has been

spearheading the process which can be conceived as an internal

one. Water Services Regulating Board has been spearheading

monitoring and evaluation of the policy impact on water provision.

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Equally is the role of non-governmental organization and private

individual, consultant as well as academicians. The available reports

on evaluation are largely from the established government agency.

On this premise one need to acknowledge the role of the resources

i.e. money and expertise involved in monitoring and evaluation on

process and this could explain prevalent of government reports and

those from donor agencies. The true impacts of the Water Acts 2002

will slowly be realized when policy is fully implemented and after a

considerable period of time.

Conclusion

The policy process for the water Act 2002 can be considered to have

undergone its full policy cycle albeit evaluation being undertaken.

From the emerging reports there are enough reasons to believe that

it has been successful so far as service provision has improved

remarkedly.

Reference:

Asingo Patrick 2005 Privatization of water services in Kenyan

local Authorities IPAR Discussion paper

John Kindon 1995 Agenda Setting in Stella Z. Theodolou Mathew A

Cahn Public Policy:The Essential Readings Prentice Hall New Jersey

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Ministry of Water and irrigation Communication Issue 1 June

2009 ).

Sabatier and Mazmanian 1995 A Conceptual Framework of the

Implemtation Processs in Stella Z. Theodolou Mathew A Cahn

Public Policy:The Essential Readings Prentice Hall New Jersey

Stella Z. Theodolou How Public Policy is Made in Stella Z.

Theodolou Mathew A Cahn Public Policy:The Essential Readings

Prentice Hall New Jersey

Government of Kenya Printer 2002 Water Act 2002

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