THE South African connection had a strong influence on some aspects of water management in Rhodesia.
Here, the settlers, encouraged by the British South Africa Company (BSAC), used the Roman Dutch Law, brought from Holland and used in South Africa.
But this was regarded as unsuited to the water resources and production of the region.
There was, however, continued use of the ‘riparian rights’ principle in interpreting access rights and differentiated water use types.
For example, according to the 1920 Water Ordinance: “If a farmer has land well suited for irrigation and there is a stream that can be economically utilised, he can acquire the right to use the whole of the water for irrigation even though it may leave others without water except for primary purposes.”
The granting of responsible government in 1923 did not result in total disconnection from the principles of the Roman Dutch Law.
The riparian canon remained on the statutes until 1998, albeit with some modifications.
Although there were disagreements between the settlers over the better legal dogma to guide water allocation, the situation was worse for indigenous people.
For instance, land appropriation disadvantaged them in as much as they were downstream of white settlers and thus considered no longer riparian to perennial rivers; the whole legal system was against them; compounded by a shortage of finance.
Primary water use was another aspect reflected in the water law.
This was water for ‘human and farm livestock’ use and was set at 50 gallons per person per day.
This was generous, more so because it could be used in and around the homestead, which did not preclude gardening.
Water for ‘secondary purposes’ was for irrigation and watering of stock other than farm stock.
‘Tertiary purposes’ included the needs of the mines and railways.
The water resources legal environment in the colony was marked by three major laws: water rights, water management and use.
By the Act of 1927 the priority right to water, granted to the mining industry within the Gold Belt areas, was modified in favour of irrigation.
Therein a number of clauses further disadvantaged the indigenous population.
First, water rights were attached to land.
This disadvantaged the natives who had been dispossessed and placed in reserves where they did not enjoy full rights.
Rights to land in the reserves were registered with Communal Area bodies (formerly known as Tribal Trust Lands) and not with individuals.
Zimbabweans could, therefore, only apply for water rights as a community, and through government officials.
Even then the District Administrator or Minister of Water Development held the water right on ‘behalf of the natives’.
There was, however, provision for the appointment of representatives of ‘native interests’ on the Irrigation Boards and in the Water Courts, although not much is known whether or not they were actually represented.
Settlers, on the other hand, could individually apply for water rights because they owned land in their private capacity.
Another setback was that water rights were issued based on the priority date system; this meant that rights were granted on a first-come first-served basis.
Here, indigenous people were again disadvantaged because they had not applied for water rights.
When they later understood this, most of the water was committed to rights held by the settlers.
Water rights were also issued in perpetuity.
This meant that a water right once issued could not be revoked except in special circumstances such as the declaration of a drought or when someone else applied for the same water and was willing to pay compensation. By virtue of the fact that settlers applied for water rights long before the indigenes, most of the water had been committed.
Although racial water allocation was provided for in the 1927 Water Act, it was only in the 1940s that massive transfers of access to water to the settlers actually occurred because of cheap finance that was made available.
The 1947 Water Amendment Act made loose allowances for primary water uses, especially for gardens and riparian users.
The Act also defined vleis (dambos – seasonally flooded wetlands or wetlands in depressions), springs and streams remained outside public management because they were defined as ‘private water’.
This later changed with restrictions on dambo cultivation mainly because of fears of degradation, mainly noticed on the white farms.
The Act also identified new water uses such as fish farms and conservation activities that resulted from new commercial interests.
The Water Act of 1976 affirmed the Roman Dutch Law concept in water management and upheld the principles of the 1927 Water Act – that is rights to water were linked to land, the priority date system of allocating water and granting a water right in perpetuity.
The Act also provided for catchment outline plans to be prepared for the development and use of surface water. Three types of water were recognised, public water, private water and underground water.
Under a 1984 amendment, the Water Act provided for stakeholder participation in such institutions as River Boards.
This participation was, however, restricted to water right holders.
The Act also required applicants for water rights to put in place water measuring devices for a water right to be confirmed as permanent.
Whereas most water rights in the native areas were temporary, they could not afford the requisite measuring devices to be installed.
Academics have asserted that the system of water allocation in the colonial period was based on the matrix of efficiency, modernity, white power, male supremacy and of starving Africans of land and water.
They further argue the planning mechanism of the settler-State was organised around the concept of the scarcity of water.
Politicians, agricultural extension officers, water resource managers, hydrologists, engineers, planners and economists propagated the concept of water scarcity when in reality the problem of water availability was one of democratic distribution and not availability.
This was re-enforced by the myth of white supremacy, which was backed up at law and in the allocation of resources.
Commercial agriculture was considered a part of the modern sector, therefore, commercial farmers were considered modern users of water, while communal agriculture was part of the subsistence and backward sector.
Thus, not much effort was made to make indigenous farmers aware even of the limited rights they had.
As a result, indigenous agriculture has not recovered since the post-colonial State did not manage to reverse the trend due to a lack of a strong ideology backed by appropriate laws and policies.
Dr Tony M. Monda BSc, DVM, is currently conducting veterinary epidemiology, agronomy and food security and agro-economic research in Zimbabwe.
For views and comments, email: tonym.MONDA@gmail.com.