Basin Level Context

Institutional development on the Orange-Senqu River basin has been fragmented but successful where it has occurred, reaching a level of sophistication and success not

found in other river basins in southern Africa (Turton, 2003d). Moreover, institutional arrangements have evolved over time and reflect the changing political, social and economic transformations that have occurred in the region (Kistin and Ashton, 2008: 391). As previously described, the historical and political context within which these development projects and institutional agreements were formed is therefore, of great significance. They were established in a time when public participation and environmental accountability were not routinely performed (Tompkins, 2007: 4). The older institutions established in the Orange-Senqu basin are therefore a reflection of this context i.e. an emphasis on technical co-operation to overcome the political incapacity to engage. The current institutional framework should therefore, be examined in this context.

In addition to the two regional (SADC) protocols and the 1997 UN Convention, the four Orange-Senqu riparian states have established six bilateral agreements and one multilateral basin-wide treaty of noteworthy importance (Hiddema and Erasmus, 2007; Kistin and Ashton, 2008; Kranz, et al., 2005a; Tompkins, 2007; Turton, 2003d) (Table 10).

Table 10: Schematic timeline showing the emergence of different water management institutions in the Orange-Senqu basin over time (Adapted from Turton, 2003d: 207)

Four of these agreements are relevant to the current management of the basin:

1. The 1986 bilateral treaty between South Africa and Lesotho, providing a framework for the Lesotho Highlands Water Project (LHWP) and the establishment of the Joint Permanent Technical Commission (JPTC), referred to today, as the Lesotho Highlands Water Commission;

2. The 1992 bilateral agreement for the establishment of the Vioolsdrift and Noordoewer Joint Irrigation Scheme (VNJIS) and the Joint Irrigation Authority (JIA) between South Africa and Namibia;

3. The 1992 bilateral agreement also between South Africa and Namibia that resulted in the establishment of the Permanent Water Commission (PWC);

4. The 2000 multilateral agreement establishing the Orange-Senqu River Commission (ORASECOM) between all four riparian states (Kistin and Ashton, 2008: 391). In terms of the composition and synergy between the mandates of these various institutions, Kistin and Ashton (2008) summarise the various institutional responsibilities in Table 11.

Table 11: Composition and Mandate of Joint Institutions for Water Management in the Orange-Senqu River Basin (Kistin and Ashton, 2008)

Institution Composition Mandate

ORASECOM _{The Council consists of 3 delegates from each of the}

riparian states and is supported by a Technical Task Team comprising specialists drawn from each country. A permanent secretariat for the Commission was established in October 2007.

To serve as a technical advisor to the Parties on matters relating to the development, utilisation and conservation of water resources. PWC Three delegates from each party. To serve as a technical advisor to

parties on the development and utilisation of shared waters; monitor and advise the JIA.

JIA Four delegates from each party, at least three of which must be landowners within the district. The fourth space in each delegation is currently filled by a representative from the respective Departments of Water and Agriculture who also serves as liaison to the PWC.

To operate and maintain the Irrigation Scheme and control the abstraction of water from the Orange River.

LHWC Three delegates from each party. To be responsible and

accountable for the project; monitor, advise, and audit the LHDA and TCTA; determine appropriate policies, procedures and expenditure limits.

The 1986 LHWP treaty, a key bilateral agreement between South Africa and Lesotho, is a project based treaty and establishes provisions for the construction and management of the LHWP. Similarly, the 1992 bilateral VNJIS agreement by the Joint Irrigation Authority (JIA) is also project-based and establishes provisions for the operation and management of the scheme and is specific to the VNJIS. Additionally, it dedicates 20 million m3 annually to the scheme with 11 million m3 going to farmers in South Africa, and 9 million m3 designated for those in Namibia (Kistin and Ashton, 2008: 392-393).

The agreements establishing the PWC and ORASECOM on the other hand, create joint institutions to advise parties on the development and utilisation of shared waters (ibid: 391). As is evident, bilateral agreements and treaties have dominated co-riparian relations in the Orange-Senqu River basin until the ORASECOM Agreement, the only multilateral basin-wide agreement that was reached in 2000 (Treaty, 2000).

In terms of institutional responsibility, the project-related institutions, the LHWC and the JIA, are granted substantial powers to design and carry out policies and procedures relating to the investigation, negotiation and recommendation to parties regarding water allocation (Kistin and Ashton, 2008: 396). The two commissions i.e. the PWC and ORASECOM serve as advisory bodies whose mandates are wider in scope than the project-based institutions, and were specifically designed with an advisory function to parties on “such matters as may be determined,” by the parties (ibid.).

a). The Permanent Water Commission (PWC)

The PWC, has evolved from the Joint Technical Committee (JTC), which was a bilateral agreement of sorts between Namibia and South Africa established in 1987 (while Namibia was still an autonomous region of South Africa). In 1992, shortly after Namibia’s independence in 1990, a bilateral agreement between Namibia and South Africa established what is referred to today as the PWC. Today, the PWC advises the governments of Namibia and South Africa on the use and development of the lower Orange River (Tompkins, 2007: 8).

b). The Lesotho Highlands Water Commission (LHWC)

Similarly, the Lesotho Highlands Water Commission is a bilateral governmental body that evolved from the Joint Permanent Technical Commission (JPTC) established under the 1986 Lesotho Highlands Water Treaty (Tompkins, 2007; Treaty, 1986). This organisation is responsible for joint matters pertaining to Lesotho and South Africa with regard to the implementation of the Lesotho Highlands Water Project (LHWP) and specifically, monitoring the performance of the two implementing agents of the LHWP, namely the Trans-Caledon Tunnel Authority (TCTA) and the Lesotho Highlands Development Authority (LHDA).45 Other responsibilities include the appointment of auditors and consultants, operating and maintenance plans, tendering procedures, the allocation of costs between the parties and the quantities of water to be delivered (Mohammed-Katerere, 2001).

The South African implementing agent, the TCTA, manages and maintains the delivery tunnel North which transfers water across the border (i.e. under the Caledon River) to the Ash River Outfall in the Vaal catchment, as well as all other aspects of the infrastructure in South Africa46 (Kranz, et al., 2005b). Essentially, the TCTA operates on a much smaller scale than its Lesotho counterpart because it is only responsible for the water from the Lesotho border until it reaches the Vaal Dam and therefore manages less infrastructural developments.47 The Lesotho Highlands Development Authority, on the other hand, is responsible for the management of all aspects of the project that fall within Lesotho, including infrastructure, hydropower as well as social aspects, such as the resettlement and compensation of displaced communities, water supply to resettled communities, public participation and civil society inclusivity in decision-making processes relating to the LHWP, irrigation and tourism48 (Tompkins, 2007).

The responsibilities of the TCTA are therefore comparatively less than that of the LHDA and this is reflected in the 1986 LHDA treaty (Treaty, 1986). While there are

45 _{Interview with Khathibe, B. (2008) Lesotho Delegate: Lesotho Highlands Water Commission, Government}

of the Kingdom of Lesotho, Maseru, Lesotho, 25 November 2008: Appendix 1A.

46 _{Interview with Roberts, P. (2008) Former Deputy Director General: Water Resources, Department of Water}

Affairs and Forestry (DWAF), Government of South Africa, Pretoria, South Africa, 19 December 2008: Appendix 2A.

47 _{Interview with Phakoe, M. (2008) Chief Executive: Lesotho Highlands Development Authority (LHDA),}

Maseru, Lesotho, 25 November 2008: Appendix 2A.

specific management provisions for the LHDA in the 1986 Treaty, the functions of the TCTA, “are provided for in considerably less detail and no attention is given to downstream responsibilities” (Mohammed-Katerere, 2001). While it can be viewed as a matter of the practical implications of the different functions for each state, it can also be regarded as an indication of the significant power asymmetries between the two states (Tompkins, 2007: 9). This also raises key issues presented by several policy-makers and scholars of the exclusion of Namibia and Botswana from the Treaty despite the fact that the LHWP has a very significant impact on the downstream waters of the Orange-Senqu Basin (Heyns, 2003: 20-21; Tompkins, 2007: 9).

c). The Lesotho Highlands Water Project (LHWP)

The Lesotho Highlands Water Project, is the largest infrastructure project in Africa (Tompkins, 2007) and contains the largest inter-basin transfer scheme in the world. Its raison d’être arguably dates back to the 1950s and was further concretised in a significant Commission of Inquiry into Water Matters conducted by the South African government in 1966 which predicted that the demand for water from South Africa’s Gauteng region, and the water demand to meet population growth, would escalate beyond the country’s water supply (Ashton, et al., 2008; Enquiry, 1970; Tompkins, 2007). Phakoe refers to the origin of the LHWP as a “double coincidence of needs” i.e. South Africa’s growing need to provide more water to meet its industrial and population needs, and Lesotho’s need to tap into its bountiful water resources in order to reduce poverty and foster economic development.49

The LHWP therefore, manages water transfers from Lesotho to South Africa, and hydroelectric power generation in Lesotho. Negotiations were conducted for 30 years during the apartheid era in South Africa before the Lesotho Highlands Water Treaty was signed in 1986, between South Africa and Major-General Justin Metsing Lekhanya’s military government in Lesotho (de Jonge Schuermans, Helbing and Fedosseev, 2004). The Treaty includes provisions for the quantities of water to be delivered, the calculation of royalties, examines country shares in the common revenue pool of the Customs Union, and also makes provisions for cost sharing, income tax and insurance (Tompkins, 2007: 9).

Initial international funding was provided by the World Bank, along with numerous aid agencies and the European Investment Bank, through Lesotho, as a result of sanctions imposed on South Africa (Hildyard, 2002). Despite the negative perceptions of World Bank involvement, qualitative research conducted revealed that it brought credibility and security to the project, and as a result, attracted other foreign investment. Additionally it set up a trust mechanism as a result of sanctions against South Africa, and importantly, increased local capacity.

According to the Chief Executive of the LHDA:

The World Bank has been very, very instrumental in shaping, not only the behaviour of LHDA, but also the governments of Lesotho and South Africa, and of course LHDA. When you look at the total financing of the project, you’ll find that for example, the World Bank (WB) contributed less than 5 %. …But what they brought into the whole scheme was credibility and security. …It opened room for other multinational corporations and financiers to see, the WB have come in here, they’ve done appraisal reports, they negotiated, they played match-maker. It was a difficult period… [And] they even helped us set up a very complicated trust system. South Africa, at that time, could not directly borrow capital on world financial markets because the apartheid regime was a pariah state... So a complicated trust mechanism was set up, but of course, it has been dismantled now because South Africa, since 1994 has been the darling of the world…

First they did their homework, they were satisfied that it was a good project. It had economic, political and social viability. So they brought it capital, and other organisations then came in. But not only that, the WB went beyond that. They set up a system of supervision. They brought a panel of experts, social and engineering. So these people would come in and advise the governments and LHDA. So everybody knew that whatever has been done it has been looked at by experts in the field. Over and above that, WB themselves came here twice a year. Supervision which was designed in the project, half yearly for all the period, come here and actually checked…[T]he half yearly supervision continued right up until the end [of Phase I]. It was mandatory. It was a requirement, twice every year until the end. Every 6 months they’d come in and checked progress. So, as you can imagine, kept a lot of pressure, so we behaved well as a result….And one of things, the WB was not shy to say that they were using this project as a guinea pig, as a test, because some of the theories had never been tested before. So they were experimenting. But the experiment worked so well, and we succeeded. Now, we are a pioneer. People come to us to learn how to manage environmental flows.50

50 _Ibid.

The overall plan for the scheme was designed to comprise of several components: five dams, over 200km of tunnels and a 72-megawatt hydropower plant for the supply of electricity to Lesotho (IRN, 2005). Thus far, Phase I of the project has been completed, which includes the 185m Katse Dam, the 145m Mohale Dam, as well as the hydropower plant and the transfer and delivery tunnels to South Africa (Tompkins, 2007). Additionally, as of December 2009, the feasibility study for Phase II has been approved.

Dam construction which commenced in 1989 has resulted in an increase in employment for Lesotho and has subsequently provided substantial revenue to the government of Lesotho through import duties (ibid.). The first water was delivered from the Katse Dam (Phase IA) in 1998, and supplies the Government of Lesotho with roughly R20 million per month in royalties (ibid.). Moreover, simultaneous power production from the Muela power plant has resulted in Lesotho becoming self-sufficient in electricity. The Mohale Dam (Phase IB), linked to Katse by a tunnel, was later inaugurated in 2004 (ibid.).

However, the LHWP has been extensively criticised by various local, regional and international civil society groups, the most notable being the INGO, International Rivers51, and the Maseru-based, Transformation Resource Centre.52 This has been due to the massive social upheaval caused by the project in Lesotho. Although a relatively small amount of households (1,000) had to be resettled, approximately 27,000 lost access to valued resources in the areas inundated by the two dams as well as downstream of these (TRC, 2006). Some sources note that $62,000 was spent for each household resettled from the Katse Dam, and over $30,000 per household for Mohale Dam (de Jonge Schuermans, et al., 2004). However, the resettlement process has been plagued by problems including corruption, lack of adequate basic services in resettled areas, inadequate compensation for displaced people and tension between resettled people and residents of the resettlement areas (Hildyard, 2002; Tompkins, 2007).

Moreover, another unforeseen and indirect consequence of inter-basin transfer schemes of this nature was brought to the fore in the form of “water theft,” unlawful farm use or illegal abstraction of the waters on the South African side. In the Vaal River system

51 _{Formerly referred to as International Rivers Network (IRN)}

52 _{Telephonic/Skype interview with Pottinger, L (2008) Director: Africa Program, and Editor: World Rivers}

Review, International Rivers, 18 July 2008: Appendix 2C; Electronic interview with Thamae, M (2008) Head: ‘Water for Justice’ Program at Transformation Resource Centre (TRC), 6 December 2008: Appendix 2A.

the amount of water lost to unlawful farm use (the construction of illegal small dams etc.) is equivalent to the entire annual yield of Mohale Dam in the Lesotho Highlands Water Project or 200 million cubic metres; the amount of water that can be supplied to approximately 8.5 million households using 100 litres per day (Hendricks, 2008). Moreover, this water has already been allocated to paid users in the Gauteng Province. The underlying premise of this issue is that farms are located in areas that are riparian to those streams which are being used for conveyance.

A common argument used by farmers is that they are merely abstracting water which would have been available to them through the natural flow of the river. However, the quantity of water that is currently being abstracted outweighs that which would have been possible had the conveyance streams operated under natural flows i.e. without the increased flow due to the transfer scheme. The issue is further exacerbated by the fact that water reforms adopted in 1998 as a result of the New Water Act have required farmers to obtain abstraction permits, and report volumetric use. Implementing and enforcing this law, which determines how much water users may abstract from a dam, river or stream, has therefore been met with severe opposition by farmers. This dispute is noteworthy because it questions whether global norms of equitable utilisation cascade down and become socialised at the local level, whether these norms in fact matter at the local level, whether individuals are aware of these principles, or whether local norms of historic rights to the land (and therefore the water on it) still take precedence. Indeed, in this case, a form of local resistance to norms of equitable utilisation as well as water privatisation norms (i.e. paying for water versus water a basic and free human right), is evident. New development projects, combined with the requirement for farmers to obtain water licenses (as initiated by the water reforms on 1998 in South Africa), are therefore said to be incompatible. However, the challenges of ‘water theft’ illustrate the difficulties in implementing norms once they are codified at the national level. This issue has been made even more politically charged due to the racial dimension of national perceptions regarding previously advantaged white farmers benefiting from water abstraction. South Africa’s challenge to balance service delivery with redressing social inequalities therefore becomes a profoundly political act. This is arguably one of the primary factors for local resistance, when newer norms threaten to disturb extant configurations of power within the state (Swatuk, 2005a).

d). The Orange-Senqu River Commission (ORASECOM)

Arguably, the most significant institutional and legal framework for the Orange- Senqu River basin exists in the ORASECOM Agreement (established in November 2000) an institutional structure, which is the first attempt to bring all Orange-Senqu riparian states together in a multilateral forum. Its mandate is to serve as a technical advisor to the Parties on matters relating to the development, utilisation and conservation of water resources (Kistin and Ashton, 2008) and can, in this capacity, execute the necessary feasibility studies to support decision-making. As such it is responsible for the dissemination of information and encourages communication on basin issues between the Member States by hosting an annual meeting of all state representatives. It also stipulates that states utilise the resource within their respective states equitably and reasonably (in accordance with the 2000 Revised Water Protocol). It furthermore acts within the role of funding coordinator for basin specific and joint basin projects. It does not, however, have any formal oversight, advisory or coordinating powers with respect to the pre-existing bilateral agreements (Kistin and Ashton, 2008) albeit it the umbrella body to which preceding bilaterals should report on any issues pertaining to the basin, changes to agreements or impacts of the waters of the basin.53

Additionally, the Commission comprises of 3 delegates from each country of the riparian states, and is supported by several task teams including Communications,