Migration can also result in the undermining of

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Migration can also result in the undermining of sustainable use regimes.Amongst some groups inhabiting high-potential areas, control of water was vested, to agreater extent, in the individual household. Amongst the Gikuyu of Kenya for example, wateravailability on inherited land is traditionally seen as “God-given.” Thus, a household withriparian access to water could often abstract large amounts for private use even at the risk ofresource depletion or at the expense of the community in general. Such households would betolerated by society unless “the actual survival of members of the community is seriouslythreatened” (Kunsi et al. 1998).While this system has worked well in the well-watered homelands of the Gikuyu, it may notbe sustainable in the drier areas where many Gikuyu now live (ibid.). It is clear thatcustomary water management regimes may often represent useful mechanisms for sustainablewater management, due to the credibility of customary institutions in certain ruralcommunities.2.4 The Roots of the Current Water LawThe legal regime for water management in Kenya has evolved from English “common” law.In line with the Roman roots of the English legal system, water was classified as a publicgood. Therefore, there was no legal possession of water in an absolute sense, only rights ofuse. Rights of use, according to English law, were dependent upon physical access to water,which essentially meant ownership of riparian (riverbank) land or ownership of land, whichallows access to groundwater beneath it. It was also dependent, in the case of surface water,upon the rights of other riparian users who had a share of the water upstream or downstream.Their rights to reasonable use could not be prejudiced by upstream abstractions. However,those who did not have riparian rights had no other rights over the resource. This meant that7 |P a g e
citizens, in their capacity as members of the public, had no legal right to complain overmisuse or overexploitation of water resources.User rights were also dependent on the water use being of a “reasonable” nature, thecharacteristics of reasonable use being decided in the courts as necessary. However, in thecase of groundwater, use was unrestricted, meaning that aquifers could be tapped to anunlimited degree by landowners. There was also no obligation to ensure that an amount wasabstracted that did not reduce the aquifer underneath the land of a fellow citizen. It can,therefore, be seen that although water was characterized as a “public good,” considerableprivate rights were conferred upon individuals, essentially based on landownership criteria.These contrasting poles of “public” and “private” rights are useful yardsticks for the analysisof water policy and law.This legal framework evolved in a water-abundant country, and did not place stringentcontrols on water use or encourage the use of water for “the greater good,” or for the mosteconomically efficient use. It is clearly not appropriate in a water-scarce country such asKenya.2.5 Modern Water Legislation

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