Legal and Institutional Context for Establishing WUAs

Editor's Note: This article comprises the introductory section of a longer paper entitled, ``Legal and Institutional Environment of Water Users Associations for Sustainable Irrigation Management." The full paper is cited in the section Suggested Reading and is available on request.

Water users Associations (WUAs) are the basic organizational units for realizing a truly participatory irrigation management. However, efforts in providing an adequate legal framework for these peoples organizations have not been as significant as the interest shown in ``organizing" the water users. WUAs should have a legal existence for their effective functioning. Hence, the legal recognition of the WUAs should proceed concurrently with the organizational efforts to establish WUAs. Two alternatives in addressing this important requirement are:

• to prepare new legislation to recognize the WUAs; OR
• to find out provisions in the existing law under which WUAs can be recognized.

The first alternative takes longer time, as it has to go through a long process to get it approved from the legislature. Often, the political climate of a given country is not favourable to bring out separate legislation to recognize the WUAs.

The second alternative would be to see the possibility of establishing WUAs under the existing laws of the given country. These laws could be the Cooperative Act, Societies Act, Association Act, Company Act, etc. However, these laws have been enacted for different purposes, and the objectives of these laws might not be compatible with the objectives of the water users associations.

Selecting a Legal Framework

Institutionally, the WUAs are usually related to either the Agriculture Ministry or the Ministry of Water Resources. Therefore, a legal framework which is not directly related to these functional areas often becomes ineffective in providing the necessary support to WUAs. For instance, the Cooperative Act is under the Ministry of Commerce in Nigeria whereas the WUAs are sponsored by the Ministry of Water Resources. Hence, there are incompatibilities of objectives and the understanding about the need for WUAs would be different.

In the absence of specific legislation for WUAs in Nepal, the WUAs were recognized sometimes under the Association Act of Nepal, 1975. The Association Act is administered by the Ministry of Home Affairs. The Act was enacted in order to control the group activities of the people, not to facilitate their group efforts. Formation of WUAs under the Cooperative Act also has the same type of problems of objective incompatibility.

In some other places, to fulfill the immediate need for the implementation of a project, an executive order would be issued for the recognition of the WUAs. Even in the absence of a legal instrument for the formation of WUAs, an agreement is signed between the donor agency and the government that WUAs will be formed and users' participation will be promoted during the project implementation. The host country government would issue executive orders for the formation of the water users associations.

Links to Rehabilitation

Often, provisions would be made at the time of agreement for irrigation system rehabilitation that the beneficiary farmers are to be encouraged to participate in the physical rehabilitation of the system because they will be assigned the responsibility to operate and maintain a certain level of the system. When the rehabilitation work is assigned to these groups of farmers, so-called WUAs, the project officials would face a problem.

According to financial regulations in many countries of South Asia, construction contract work cannot be given to unregistered contractors. Since the so-called WUAs are not recognized as legal bodies and not registered anywhere they cannot be given the construction contract. To circumvent this problem, the Irrigation Department or any other agency tend to register and recognize them as ``D" contractors. This is considered as a fulfillment of the legal recognition for WUAs. However, the WUAs recognized under such circumstances would not be effective, as they would confront many conflicts with the officials during project implementation.

Linking with Local Government

Another important factor to be taken into consideration is the relationship between the local political institutions and the WUA establishment. Since the WUA is also taken as one of the units at the grass roots level, it should be integrated with the local organization of the government. Often, a suggestion is made that the chairman of the WUA should be the village chief or some political person irrespective of whether he or she owns land under the command of the irrigation system. Under such circumstances, the government seeks to extend political control over the WUA through local organizations. Such provision was made in the Decentralization Act of Nepal, 1981. Similar provision can be seen in the WUA activity in Guyana. In West Bengal of India, the Gram Panchayat is made the focal point for all development activities so the WUAs also come under the Gram Panchayats.

Thus, the better alternative would be to have a specific set of legal instruments for water users associations to be a ``self-governing, self-regulating and self –supporting organization". Provision should be made for the ``social capital" development in the functioning of water users associations.

• Establishing a Legal Rationale for WUAs
• As a step in establishing the legal framework, it is useful to identify the benefits that participation of farmers in management can generate. Some of these benefits are:
• Increasing the likelihood that these water related facilities will be well maintained;
• Reducing the financial and management burdens on the government in the regular operation and maintenance of the system;
• Involving the WUA members in local resource mobilization (labor/cash/kind) (the capacity of the community members can be used to exert social pressures on their fellow members to mobilize the resources);
• Promoting sustainability by assuring that those design choices and operation practices are consistent with local crop requirement and farmer capacity;
• Contributing to community cohesion and strengthening the group efforts to undertake other development activities;
• Undertaking multiple activities for the prosperity of the farmer community;
• Ensuring to provide better services to the farmers; and
• Empowering the farmers to undertake collective efforts for themselves rather than WUAs working as the extension of the government.

Each of these benefits is related to duties and functions of WUAs. In the performance of these functions, the WUAs have to constantly interact with their own members, as well as their social environment, and to be effective, they have to mobilize resources, provide rewards and impose sanctions. All of these actions need a clearly defined set of rules, which are commonly acceptable. The rules and the common agreement should both be reflected in the legal framework for WUAs.

The Broader Institutional Context

The formation of WUA alone is not a sufficient condition for the WUA to perform the assigned job of better performance of irrigation systems. WUAs for effective performance require support from different levels of organizations within a country. Besides the legal provision to form the WUAs, it is necessary to have support from project level, department level, ministry level and appropriate administrative procedure facilitating the WUAs to perform. Besides this institutional support, it is necessary to have some political support, as well as, donors' support to empower the WUAs.

The proper working of WUAs presupposes a change in the working style of the agencies. There is a need for a change in the role of the agency to recognize the WUAs as partners in irrigation management. The government should provide incentive to the staff for promoting the ideal of participatory irrigation system management. This job should be made part of the job description of the agency staff. Working procedure needs to be changed by institutionalizing the decentralized planning process, budget preparation and decentralized disbursement procedure. Along with the establishment of WUAs, there is a need for corresponding changes in the working procedures, attitudes, and incentive mechanisms of the agency staff. The WUAs will remain a dysfunctional organization if corresponding reforms are not introduced in the agency management style and structure.

- Prachanda Pradhan and D.J. Bandaragoda

Dr. Prachand Pradhan
Institutional Specialist
P. O. Box 32
Patan-Lalitpur, Nepal
Fax: (977-1) 524104
email: Pradhan@Prachand.mos.com.np