The Ministry of Water and Environment and the Implementation of the Water Law no (33) for 2002.Understanding water laws in Yemen [Archives:2003/646/Health]
Awadh A. Bahamish
Advocate and legal consultant
According to Article (31) of the cabinet law no (20) of 1991. The naming of members of the government in the Republican Decree shall be considered as establishment of such ministries. So, a new ministry of water and environment is established. Also, according to article (33) ministries shall be regulated through the issuance and enactment of a Republican Decree specifying the legal framework of the ministry and its functions and responsibilities as well as determining the administrative and legal relationship between the ministry and its branches and the corporations and authorities that follow the ministry.
Therefore the regulatory framework and the executive regulation of the ministry of water shall be issued by a Republican Decree whereby legislative amendments to the establishment decrees of the authorities are necessary.
On 12/6/2003, parliament approved the government programme whereby the ministry of water and environment is responsible to undertake the following: –
1) Preparation of the executive regulation of the Water Law and to implement it firmly and strongly and make public awareness campaigns of its importance so that to limit random drilling and to rationalize the use of water resources.
2) Updating and modernizing the National Water strategy and to carry out policies and preparation of national water plan and plans on the level of basins with concentration on the critical ones of the basins as first stage.
3) Preparation and implementation of plan to guide how water facilities and structures to be established to enhance ground water.
4) To continue in the policy of decentralization in the management of water facilities in the urban and rural areas and to strengthen the local authorities partnership and the water users and beneficiaries to establish and manage such facilities.
The government programme used the word (firmly strongly) for the implementation of the Water Law. This is important because it is expected that some resistance by rural landowners and ground water owners and water rights holders might occur due to lack of awareness of the provisions of the Water Law.
The Ministry of Water and Environment can not implement the Water Law alone, unless other ministries and concerned parties cooperate with it in this respect, e.g. ministry of interior to enforce the law against violators, the ministry of information to start with public awareness campaigns of the Water Law. Also the local councils in the governorates and the districts in accordance with the local authority law no (4) of 2000. As well as the agricultural co-operative societies and other civil society organizations.
Disputes over water are not uncommon in Yemen and therefore machinery to resolve conflict on the basis of the Water Law and its provisions as well as the local authority law should be established since the law sets the rules and regulations for water usage and defines specific rights and penalties. The basins committees, the water users associations and the local councils shall have an important role to resolve conflicts and disputes of water rights instead of the judiciary system.
The entire country have now been divided into (14) water management zones based on hydro-geological criteria providing the foundation for water resources management planning on catchments and basins basis. Therefore the water ministry shall have offices in such basins to play the role of adopting the principle of management through partnership on the level of the basins and to coordinate with the water users associations and beneficiaries and the local councils in accordance with the provisions of the Water Law and local Authority Law.
The water Law no (33) of 2002 was at last issued on 31/8/2002 where parliament amended many articles especially articles (25) and (27) where parliament insisted that management of the water resources should be decentralized to comply with the local authority law. So now the legal framework as a result of the new water law is for development of regulations and by-laws to govern various aspects of water including assignment and delegation of functions and responsibilities of the Ministry of Water and its Corporations and Authorities to their branches in the governorates or other entities as basin committees and local councils, as well as establishment of mechanisms for operation of WUGs and installation and empowerment of decentralized water management institutions. It is the legal duty of the Ministry to strengthen its branches for the purpose to achieve successful water management. The exact nature of management of water at wadi, sub-basin or basin level and the role and responsibilities of district and local authorities in water management are crystal clear in the water law and local authority law as explained above. The legal status and operating rules of Wu groups and associations should be provided for in the executive regulation of the water law.
According to the Law on Local Authorities, the local authorities system ” is based on the principle of administrative and financial decentralization” and on a wide participation of the public in decision-making and in the management of matters of local concern (Article 4). Under article 19, the Governorate Local Councils are responsible, amongst other things, for the preparation of plans and supervision of their implementation, for the supervision and control of the implementation of water policies, laws and regulations within the governorates, and for the protection of basins against over-exploitation and pollution, in accordance with the provisions of the laws and regulations in force and with the directives issued by the central authorities, in addition the councils are to promote the establishment of cooperatives and associations, and to coordinate their plans and programmes. The local District Councils are responsible for the promotion of water resources development within the Districts, through the construction of dams and weirs and for the protection of water against depletion and pollution. The District Councils, also, are to supervise the implementation of environmental policies and legislation, and to supervise and coordinate the activities of cooperatives and associations, and to promote their establishment (Article 61). Furthermore, both the Governorate and District Councils are entitled to propose principles guiding the determination of contributions by citizens to the operation and maintenance of projects for the delivery of essential services, such as water supply, and the supervision of project implementation by the people themselves. The involvement of the councils through the setting of principles and guidelines may provide a guarantee of equitable water distribution at the local level. Thus, the local authorities have a role to play in the administration of the Water Law. The Law on Local authorities allows offices and branches of ministries and authorities to become part of the administrative structure of the local authorities, i.e., to become executive organs thereof (Article 2). Under Article 14, ” the executive organs of the administrative units [of the local authorities] are deemed to be local organs.” Thus, they are part of the local-Governorate and District-administrations, although they perform, each within its own sphere of competence, the functions of central ministries and authorities within the Governorate and the District, respectively. The central ministries and authorities retain the power to formulate general policies, carry out technical supervision and implement national projects, or project that, due to their nature, are difficult to implement at the local level. Administratively, the executive organs are supervised by the local authorities' councils. In this context, the Ministry of Water will delegate functions that are difficult to perform at the central level to the level of the local authorities. Qualified staff will have to be made available at this level. A pre-condition for this arrangement to be workable is that the capacity to implement Water Law is built, first at the central level and then at that of local administrations. The law introduces new instruments, such as water resources planning and the licensing and recognition of water rights, which should be well understood by water administrators for the law to be effectively implemented. The approach to be taken with regard to delegation should be gradual, starting with a determination of the functions that should be delegated as a matter of priority. Some of these functions are indicated in the Law on Local Authorities and in its implementing regulations, such as in the case of the licensing of well drilling. As second step, a plan for function delegation should be prepared, which indicates the basins-or aquifers-that require attention first.