Law, Social Justice & Global Development
(An Electronic Law Journal) 

Towards a Human Rights 
Based Development Approach:
The Case of Women in the Water 
Reform Process in Zimbabwe

Professor Anne Hellum
Institute of Women’s Law, 
University of Oslo, Norway

Anne.Hellum@jus.uio.no 

This is a refereed article published on: 21 June 2001 

Citation: Hellum A, ‘Towards a Human Rights Development Approach: The Case of Women in the Water Reform Process in Zimbabwe’, 2001 (1) Law, Social Justice & Global Development Journal (LGD). 
<http://elj.warwick.ac.uk/global/issue/2001-1/hellum.html>
Abstract
Water reform illustrates the conflicts and tensions between indivdualist and welfarist polices at the international, national and local levels. Two goals of the water reform are to broaden women’s access to water and to enhance their participation in water management. With the shift from welfarist to market driven policies in relation to land, water, health and education I suggest employing the human rights of women as enunciated in CEDAW as an important counterbalance. Thus in this article the impact of international and national water reform policies are analysed in light of Zimbabwean women farmers’ rights to non-discrimination and an adequate standard of living.  

Keywords: Human rights, gender, women, liberalisation, development, water resources, Zimbabwe

1. Introduction: International Water Reform Policies in the Intersection between Liberalist and Welfarist Values and Principles
The global process of economic liberalisation and market orientation is making its mark on international health, education, water and land reform policies. Development policies in the 70s and 80s were to a large extent informed by welfarist thinking seeing education, health services and water as social goods to be supplied at subsidised rates or free of charge by the state. The dominant trend since the early 90s is to merge liberalist and welfarist approaches within the framework of sustainable development (Brundtland Commission). It is within this theoretical climate that human rights based development theories, such as the capabilities approach worked out by the philosopher Martha Nussbaum and the economist Amartya Sen, are emerging (Sen, 1993 and 1999, Nussbaum, 1999) The capabilities approach places the individual as a holder of basic rights at the core of the process of development. Rather than seeing the individual aspects of the civil and political human rights as opposed to the collective aspects of the social and economic human rights, the two are approached as an integrated and mutually interdependent whole. This broad approach emphasises the relevance of the whole array of human rights in development processes. These encompass firstly, the civil and political rights including the right to participation, the right to freedom, the right to self- determination and the right to equality. Secondly, the social, cultural and economic rights such as the right to health, the right to food and the right to livelihood. Thirdly, the so-called solidarity rights in terms of the right to development and the right to environment. 

The water reform processes that today are taking place in a number of countries in Africa and Asia were initiated by the international drive towards sustainable development in general and sustainable water management in particular. The most important principles that so far have been agreed on international conferences on water management are embodied in The Rio Declaration on Environment and Development of 1992, Agenda 21 of 1992 and The Dublin Statement on Water and Sustainable Development of 1992. Among the international water management principles that affect women’s access to water and participation in water management are: 

•	water should be seen as a social and economic good;

•	water management should be based on the user pay principle;

•	water management should be decentralised and user based;

•	water should be managed within an integrated framework drawing a balance between efficiency, insurance of basic needs and environmentally sound management;

•	Women’s central role as water managers and water users should be recognised. 

These principles reflect an attempt to balance liberal economic thinking on international development policy voiced by international actors like the IMF and the World Bank with broader human rights concerns. The argument that these institutions have an obligation to ensure that new policies and programmes don’t lead segments of a population to be denied basic human rights such as food, education, health services and clean drinking water for children because they can’t pay, has certainly gained momentum (Skogly, 2000). As regards satisfaction of basic needs, such as water, education and health the introduction of the user pay principle has, however, made the situation of poor people in the third world more difficult. 

This article explores the complex intersection between individualist and welfarist policies and principles through two goals of the water reform process in Zimbabwe: they being, increasing women’s access to water and enhancing their participation in water management. As an alternative to the gender and development approach that has constituted the dominant paradigm in the water reform process in Zimbabwe I suggest in part two a woman focused human rights approach. In part three a framework aimed at mainstreaming women’s civil, political and economic rights into water reform programs is presented. Part four emphasizes the need for a human rights approach because most small scale farmers in Zimbabwe rely heavily on customary use rights. Part five and six discuss the outcome of the water reform process so far in relation to two human rights issues: women’s access to water and participation in water management. 

My analysis of the water reform process in Zimbabwe is based on law and policy documents, consultancy reports and the existing literature on gender and water in Zimbabwe. I have also attended a series of water policy and management meetings.

2. Background and Context of the Zimbabwean Water Reform: National and International Factors
The water reform process in Zimbabwe was influenced by both international and national concerns. 

One of the overall concerns of the Zimbabwean law and policy makers was to rectify the unequal distribution of water resources. The unequal distribution of water among white commercial and black communal farmers is intimately linked to the unequal distribution of land. Until the implementation of the ‘fast track land reform programme’ of the Mugabe government, setting out to seize about 3000 commercial farms by December 2000, large scale commercial farms took up 157 000 km 2 and are owned by 4 400 commercial farmers. The majority of these farmers were white but there is certainly a rapidly increasing number of black commercial farmers. These farms employed about 300,000 farm workers when seasonal labour is included. It’s about 1.5 million assuming 5 members per household of each farm worker.The communal land areas constitute 163,500 km 2. In these areas you find home to 
4,500,000 people who are mainly small-scale farmers.

Within the irrigation sector, commercial farms account for 84% of the available water - small scale and subsistence farmers in the communal areas account for 7%.The water for agriculture is primarily from wetlands/dambos, and streambank gardens. The rural primary water supplies in the communal lands is also based on ground water through deep wells and boreholes. Some 29 000 wells and boreholes have been developed under the National Rural Water Supply and Sanitation Programme (NRWSSP) Due to a lack of water for irrigation in communal areas, agriculture in these areas has also to a large extent been driven by water initialy set aside for drinking, washing etc. 

In the communal areas water is used for agriculture by both men and women. Land and water use is, however, highly gendered. While irrigated cash crop agriculture often is often controlled by men women are in charge of vegetable gardens. The women’s gardens are usually hand irrigated. Women rely heavily on the common water resources that are free of charge such as borehole water and shallow wells. Women’s gardens are as much a source of income as of food for the family. The income is often used for meeting household needs including food, education, clothing and medical needs. In times of drought and economic hardship women’s gardens are the main means of livelihood for large groups of the population. This implies that women by use of these marginal land and water resources play an important role as family maintainers. A major concern in the Zimbabwean setting is thus how water should be managed to improve the lot of women small-scale farmers in the communal areas in terms of taking measures that put them on an equal footing with men.  

In 1995 the Zimbabwean Ministry of Lands and Water Resources of the Government of Zimbabwe (GOZ) embarked on the ‘Programme for the Development of a National Water Resources Management Strategy’ (WRMS). The Water Resources Management Reform Programme, was composed of:

•	The Water Resource Management Strategy (WRMS) Project;

•	The Institutional Development and Legal Reforms (IDLR) Project 

The Water Resources Management Reform Programme of GoZ is not yet completed. A new Water Act No 31/98, the Zimbabwe National Water Authority (ZINWA) Act No.11/98 have been passed by Parliament and gazetted. Furthermore, Statutory Instruments for Water Catchment and Sub Catchment Councils are in place. A draft policy document ‘Government of Zimbabwe Water Resources Management Strategy’ has been presented for selected groups of users but is still not completed (The Government of Zimbabwe, 1999). Statutory regulations with respect to the system of water allocation are not in place. 

Within the draft Zimbabwean water management policy there is, in accordance with the internationally agreed water management principles from Rio and Dublin, a shift from a welfarist approach centering on subsidized government provided services to a more market oriented approach focusing on productive uses of water. Both sets of values are, however, embedded in the overall policy goals as expressed by the Water Resource Management Strategy Steering Group which are to:

•	promote equal access to water for all;

•	promote stakeholder participation;

•	promote an integrated and catchment based land and water management system;

•	project the role water resources can play in poverty alleviation;

•	establish guidelines for private sector financing, improve self-financing and ameliorate public sector funding;

•	put in place water pricing policies based on water as an economic good. (Government of Zimbabwe, 1999, pp 10-12).

A critical issue is how the new water policy will balance the concerns of the poor with an increased market orientation. A shift from a supply-side focus to a demand-oriented one based upon the user pay principle will inevitably affect existing gender inequalities in terms of access to water. There is a danger that the emphasis on water as an economic good will bring about shifts in women’s and men’s crop production choices so as to push women with lower abilities to pay out of the production of irrigated vegetables has been pointed out (Ferguson, 1998). Another concern is how the custom based common property rights to water and land that a large number of women rely on for their vegetable production will be negatively affected by a more market oriented water management model. These are areas where the non-discrimination standard of the CEDAW, prohibiting both direct and indirect discrimination against women, must be used to promote real equality between different groups of male and female water users.

3. From Gender and Development to Mainstreaming Women’s Human Rights in Development Projects
The goal for the new water policy was initially to mainstream gender into all areas of water management. Pursuing a gender neutral, rather than a woman focused approach, the aim of the draft water policy of the Government is to promote equal access to water for all. Rather than seeing ‘the woman question’ as a separate issue it was decided that gender should form an integrated part of each and every aspect of the new water management policy. In spite of these good intentions gender is in the draft policy document dealt with as a separate issue. The formulation of the suggested policies for stakeholder participation or water pricing does not address gender issues. 

One lesson to learn from the water reform process in Zimbabwe is that ‘mainstreaming’ ,which has been the dominant paradigm in gender and development policy (GAD) in the 90s, not necessarily leads to inclusion of women in practice. ‘Mainstreaming’ was introduced to rectify the perceived failure of national women’s machineries set up in the 70s and 80s which were part and parcel of the women in development policy (WID). The aim was to avoid the marginalization that separate institutions often led to in practice. The focus on mainstreaming gender into the water reform process in Zimbabwe has in practice resulted in a focus away from women. On a meeting in July 1999 where stakeholders were invited to discuss the reform I asked one of the male officials why no measures had been take to ensure women’s participation in water management. He answered that gender was social and not biological. What mattered was not biological sex but the attitude of the man or woman who was elected. This illustrates a major problem with the shift from women to gender in development policy. Although the gender discourse has been adopted in policy making institutions it is in practice being twisted, bent and re-interpreted to suit other interests than women’s (Goetz and Baden, 1997, Kabeer, 1994).

Strategies setting out to make water managers and planners gender aware is a necessary but not sufficient measure. More important is to ensure that the water reform process takes women’s rights to participate and own property on an equal basis with men onboard. An approach that places individual women as holders of basic rights is embedded in the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Encompassing the right to participation, the right to education, the right to work and the right to equality in land and water reform the CEDAW forms the most important human rights instrument for promoting women’ s participation in development.

As a signatory to all these instruments the Government of Zimbabwe is obliged to increase women’s capabilities by giving them property rights, rights to credit and political representation and participation. Furthermore, CEDAW is ratified by all the donor countries that funded the WRMS project. To promote human rights a number of national donor agencies have started considering the aims, means and expected outcome of development project from a human rights perspective (Alston, 1999, Chair, 1999, Frankovits, 1999). The human rights based development approach sees human rights and sustainable development as inextricably interlinked. Norway is among the donor countries that in recent years has embarked on development policies premised on the view that human rights should constitute an overall framework for the promotion of developmental aims and goals. The Strategy for Women and Gender Equality in Development Co-operation of the Norwegian Ministry of Foreign Affairs constitutes a rights based framework: 

‘The overriding objective of Norwegian Development Co-operation policy is to contribute towards an improvement in economic, social and political conditions in developing countries, within the framework of sustainable development. To achieve this objective, one of the five main areas targeted is the promotion of equal rights and opportunities for women and men in all areas of society. It is not enough for development assistance to apply to individual projects directed towards women. Equal rights and opportunities for women and men must be integrated into all aspects of development co-operation’ (UD; 1997-2005, p 1).

What is needed to put this policy into practice is a framework mainstreaming women’s human rights into development projects. 

4. Towards a Women’s Human Rights Based Water Management Framework
4.1 Water as a Human Rights Issue
Access to basic resources, such as the environment, development, health, water and land, have in recent years been coined as human rights issues. So far the right to development, the right to environment or the right to water has not found expression in international law as human rights in a strict legal sense (Bugge, 1994). One reason is that granting legal rights to some citizens implies placing obligations and limitations on the freedoms of other citizens. The right to development, the right to environment or the right to land and water are, however, human rights issues (Anderson, 1996, Boyle, 1996). There are a wide range of human rights principles that are of critical significance for a clean and healthy environment and access to basic resources such as land and water. In this article I focus two human rights principles having a bearing on women’s access to water. These are the rights to political participation and the requirement of states to refrain from discrimination on the basis of race, class, ethnicity and gender in resource allocation. 

Stating that women’s rights are human rights, UNDP’s policy of integrating human rights with sustainable development emphasises the role of legal rights towards increasing women’s capabilities by outlawing discrimination in employment, education, family affairs, land rights, credit services and other entitlements (UNDP 1998). However, although the majority of the women of the world rely heavily on land and water for the maintenance of their families, water and land reform have been given scarce attention by the UN Committees such as CEDAW Committee and the Committee of Social, Economic and Cultural rights. Existing literature on water as a human right issue does not address gender issues (McCaffrey, 1992, Gleick, 1999). There is, however, a growing body of literature on women’s access to water and participation in water management (Cleaver, 1998 a, Cleaver, 1998 b, Sithole, 1999, Watchmeister, 2000). In this article I link these different bodies of literature with a view to broadening the women’s human rights discourse which has a series of implications for policy and practice.

4.2 Equal Access to Water
CEDAW forms the most important human rights framework for promoting women’ s access to water and participation in water management. In a single document it encompasses a series of civil, political, economic and social human rights that have bearing on women’s access to water. Article 1 of the CEDAW protects women against any action that:

‘has the effect that they impair or nullify, on a basis of equality between men and women, human rights in the political, economic, social, cultural, civil or any other field’. 

Although water is not a human right in a strict legal sense the CEDAW sets a series of standards that have a bearing of women’s access to water and women’s participation in water management. The principle of non-discrimination is also embedded in article 18 of the African Charter of People’s Human Rights (the African Charter). The Draft Protocol to the African Charter on the Rights of Women in Africa of 1999 strengthens women’s protection against discrimination in a number of areas.

Article 14.2 h of the CEDAW states that rural women have a right to:

‘enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications’. 

Article 14.2 g lays down that land and agrarian reform as well as resettlement schemes should be based on the principle of equality and non-discrimination. Although water reform not is specifically mentioned it is, in the light of a series of international policy documents concerning water management, clear that the principles of equality and non-discrimination apply to water reform. Also, the Rio Declaration on Environment and Development, Agenda 21 and The Dublin Statement on Water and Sustainable Development emphasise that women are an important user group that should participate in the decision-making, allocation, management and use of water resources. The Draft Protocol to the African Charter on the Rights of Women in Africa goes one step further. Article 17 concerning right to food security obliges State Parties to:

‘a) provide women with access to clean drinking water, sources of domestic fuel, land and the means of producing food.’

Furthermore, Article 14.2 of the CEDAW places an obligation on States Parties to take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate and benefit from rural development programs. In a similar vein Article 3 of the Draft Protocol to the African Charter obliges:

‘States Parties to the Protocol to take all necessary measures to integrate a women’s perspective in their policy decisions, legislation, development plans and all spheres of life’.

Taking into account that gender neutral laws in a situation where resources such as time, money, land and water are unevenly distributed between men and women, the CEDAW obliges the States Parties to take measures towards de facto equality. This obligation is embedded in Article 1 of the CEDAW, which prohibits both direct and indirect discrimination of women. A similar formulation is found in Article 1 in the Draft protocol to the African Charter. By indirect discrimination is meant:

‘any distinction, exclusion or restriction made on the basis of sex which has the effect that they impair or nullify, on a basis of equality between men and women, human rights in the political, economic, social, cultural, civil or any other field’. 

This implies that States Parties, in accordance with Article 2 are obliged to take appropriate measure to eradicate legal, social, economic and cultural barriers that impede women’s participation in water management and access to water on an equal basis with men.

The concept of indirect discrimination is helpful to come to grips with development policies and programmes that on its face value are gender-neutral but in practice mean that large groups of female water users are disfavoured. Laws, policies and programmes that systematically disfavour female water users constitute a contravention of the non-discrimination principle in the CEDAW. The distinction between domestic and productive water use, which often underlies plans for improvements and investments in water, is an example of a policy framework that may have a discriminatory effect. A series of research projects on gender, water and development have documented how women are marginalised because investment in water is channelled towards productive water use (Cleaver and Elson, 1995, Cleaver, 1998a, Zwarteveen, 1997). The divide between productive and unproductive water use has also been questioned from a rural livelihood perspective (Nicol, 2000). The water sources women in the communal land use for domestic purposes have by conventional economic standards been seen as unproductive while producing crops for sale from the same water is seen as productive. There is a contentious relationship between this narrow conception of productive water use, which also is rooted in Zimbabwe’s draft water reform policy, and  Article 14.1 of the CEDAW states that work in the monetarised an non-monetarised sectors should have equal status: 

‘States Parties shall take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families, including their work in the non-monetarised sectors of the economy’. 

Moving beyond the private/public dichotomy, that often has been to the effect that land and water reforms are seen as distinct and separate processes, CEDAW requires that land and water reform should comply with the equality principle embodied in Article 16 h. This provision demands:

‘The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.’ 

Property regimes where the husband is seen as holding the matrimonial property on behalf of the spouses is highly problematic in relation to both land and water rights.

The principles embodied in CEDAW go beyond the equal opportunity approach. It introduces a series of measures aiming at equal distribution of resources, e.g. land and water between women and men. Article 14.2.g obliges the States Parties to ensure that rural women have equal access to agricultural credit and loans and adequate technology with men. As such, it makes Article 13.2 b, which lays down that States Parties shall take appropriate measures to ensure, on a basis of equality between men and women, the same rights, in particular ‘the right to bank loans, mortgages and other forms of financial credit’ relevant for rural women. Common property regimes, where neither men nor women have title deed to land such as in the communal areas in Zimbabwe, raise a series of difficult issues for men’s and women’s access to credit as a condition for making the investments necessary to make use of their water rights. 
4.3. Equal Participation
Equal access to resources, such as land and water is, within the framework of the Women’s Convention, closely linked to equal participation. Article 7 of the Convention obliges States Parties to take all appropriate measures to eliminate discrimination against women in the political and public life of the country and be eligible for election to all publicly elected bodies. As regards rural women Article 14. 2 a states the right to participate in the elaboration and implementation of development planning at all levels while it lays down the right to participate in all community activities.

Going beyond the equal opportunity approach the CEDAW in Article 4.1 states that:

‘Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention’. 

Article 4.1 is important in that it may be applied to ensure women’s participation in the national and local institutions that are involved with water management and allocation as well as introducing gender sensitive criteria for water allocation. Affirmative action represents a measure that may be taken to enhance de facto equality. Although affirmative action is not obligatory the CEDAW Committee has, on a number of occasions, recommended that States Parties make use of this measure (McClimans, 1997). A number of countries have incorporated this measure in their constitutions, such as South Africa, Namibia and Uganda. Affirmative action was also included in the Draft Constitution of the Constitutional Commission in Zimbabwe.

4.4 Water and the Right to an Adequate Living Standard
Land and water are critical resources for the livelihood of local communities and families. The right to livelihood as a human right is embodied in the International Covenant on Economic, Social, and Cultural Rights of 1966 (CESCR). The right to livelihood approach is important in that it sets minimum standards that State Parties are obliged to respect. Minimum rights are important in that they under the circumstances may go beyond the non-discrimination approach.

Article 11.1 of the CESCR recognises:

‘the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to take the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realisation of this right, recognising to this effect the essential importance of international co-operation based on free consent.’

Article 17 of the Draft Protocol to the African Charter on the Rights of Women in Africa places and obligation on State Parties to take appropriate measures to ensure women’s right to food security:

‘a) provide women with access to clean drinking water, sources of domestic fuel, land and the means of producing food’.

The Convention on the Rights of the Child also places an obligation on States Parties to ensure clean drinking water.

There is a tension between the user pay principle as articulated in international policy principles and the right to livelihood in terms of Article 11 of the CESCR, the Draft Protocol to the African Charter and the Child Convention. The question as to when the user pay principle conflicts with the right to livelihood has not yet been put forward to any of the human rights bodies that oversee the performance of the states parties, such as the CEDAW Committee, the Committee on the Rights of the Child or the Committee on the Economic, Social and Cultural Rights (CESCR Committee). It can be argued that policies which make water inaccessible for certain groups represents a human rights contravention. It can be argued this way because the CEDAW, the Draft Protocol to the African Charter and the Child Right Convention emphasise water as a vital condition for human rights in terms of food and health. The two latter giving women and children a rights to clean drinking water. The Women’s Convention and the Child Rights Convention as of today have status as a primary instrument that should inform the interpretation of all other human rights instruments. In the African context this viewpoint is strongly supported by Article 21 d)of the Draft Protocol to the African Charter explicitly states that in order to fulfil women’s rights to development States Parties are obliged to:

‘d) ensure that the implementation of trade and economic policy programmes such as globalisation, the negative effects of such on women are minimised’.
5. Handling Legal Pluralism and Differences Between Women in Water Reform
A human rights framework setting out to describe, understand or improve women’s access to water or participation in water management calls for careful consideration of the complex socio-legal context in which it is going to operate.

Zimbabwe is divided into commercial large scale farming areas and communal small scale farming areas (these include small-commercial farming areas, resettlement areas and communal areas comprising approximately 53% of Zimbabwe’s land area). Women water users are not a homogenous group but belong to all these different user groups. In communal areas and resettlement schemes both men and women rely heavily on customary use rights. Gender issues in terms of right to participation in water management or access to water certainly cut across the race and class divide. Yet at the same time the needs and interests of women small scale farmers in the communal areas and women involved in large scale commercial farming differ. There are also great differences between poor and wealthy farmers within the communal lands. The fact that women water users are not a homogenous group calls for a differentiated reform policy. 

Another critical concern is that access to water, like other resources, is regulated by more than one body of norms. In Zimbabwe the Roman Dutch law, which initially was the law of the European colonizers, the Constitution and the legislation operates side by side and in interaction with the customary laws of the different ‘indigenous peoples of Zimbabwe’. The plural character of the legal system is a factor that has severe implications for the implementation of human rights standards in relation to reform in family-, health- and natural resources management reform (Mohammed, 1994). In communal areas and resettlement schemes both men’s and women’s access to land and water rely heavily on customary use rights.

Legal pluralism is from a women’s human rights perspective a two edged sword. At the family level a series of customary norms embody male authority in decision making. Male prerogatives in controlling property in terms of land and water, such as the marital power, are also at work. How influential these norms are going to be in its encounter with the new water laws and policies will depend on a number of factors. First, are the law and policy makers willing to promote women’s rights to participation and property? Second, to what extent will women be able to take advantage of eventual reforms in practice? As shown by a series of recent socio-legal studies customary norms are not static but constantly interacting with the surrounding social, economic and legal environment. There is today a vast body of literature demonstrating the uneven process of change whereby more egalitarian values are slowly making their mark on local customs and practises in the area of family and inheritance law (WLSA, 1994, Hellum, 1999). Women’s struggle to transform the normative basis for asymmetric gender relationships in both informal and formal water management is described in recent research (Cleaver, 1998a, Wachtmeister, 2000). Studies of natural resources management show that women in communal lands and resettlement schemes rely on a mixture of water sources that are regulated by both statutory and customary law. Customary use rights to land and water, such as riverine gardens and dambo cultivation are of particular importance for the vegetable production of large groups of women and as such for the livelihood of poor families (Derman, 1997, Sithole, 2000).  

To respond to a situation where customary practices under certain circumstances are beneficial for women and not in others a context and situation sensitive human rights approach is needed. To strike a balance between women’s common and different needs and interests the feminist philosopher Martha Nussbaum suggests we apply a ‘capabilities approach’. Nussbaum, who has worked closely with the economist Amartya Sen, proposes several functions to be cross-cultural benchmarks for assessing human rights progress (Nussbaum, 1998, 229). The right to have a say as well as satisfaction of basic needs are among the functions she sees as cutting across socio-cultural diversity. At the crux of this approach is not compliance with formal equality standards as such but whether a person is in a position to realise her opportunities. The capabilities approach suggests that we go beyond asking what social, economic, cultural and legal resources in a narrow sense that are present. It also asks how those that are present do or do not work, and in the final analysis whether these resources actually enable women to function. 

This article suggests that the capabilities approach is combined with a functionalist approach to law. A functionalist definition of law implies that we ask not just about what the formal legislated and customary norms are but what the norms that in practice matters are and how they function (Zweigert and Kotz, 1994). The question is whether or not they facilitate women’s access to water and participation in water management. This provides an overall framework enabling us to come to grips with the rapid and uneven process whereby human rights gradually is making its mark on the socio-legal development on the ground. Focusing functions as opposed to abstract rules may also be helpful in terms of working out measures that may be taken to respond to different groups of women’s access to water and participation in water management in different contexts and settings. Such an approach may give valuable guidance to what, in accordance with article 2b of the CEDAW, constitute appropriate measures to eliminate discrimination and enhance equality. The capabilities approach, however, in order to be effective has to rely on detailed empirical research showing how people through their practices are adapting to changing social, legal and economic circumstances.
6. Access to Water
Gender neutral laws confront a reality where resources such as time, money, land and water are unevenly distributed between men and women. Taking into account that formal equality often work to women’s disadvantage, the CEDAW obliges the States Parties to take measures towards de facto equality. To put female communal farmers that rely on common water sources mainly regulated by local customs for their vegetable production on an equal footing with men who are often in control of commercially irrigated crops, is where new and innovative approaches must be found to obtaining real equality. 
6.1 Access to Water for Commercial Use
Women are free to apply for a permit to use water on an equal basis with men. The Water Act of 1998, the ZINWA Act and the statutory instruments are based on a gender-neutral equal opportunity approach for access to water for commercial use. Those who want to withdraw water or store water (flow rights and storage rights) from a stream or river will have to apply for a permit. 

The Water Act of 1998 replaces the old colonial system of permanent water rights with a permit system. The Water Act of 1976 was based on the ‘first in time first in right principle’. The principle, which derives from Roman-Dutch law, implied that the right holders with the earliest water rights had a formal right to get water first during periods of scarcity. The inequality embedded in the priority date system was increased by the fact that water rights were granted in perpetuity by the Water Court under the old Water Act. In order to contribute to a more equitable distribution of water the Water Act of 1998 does away with the priority date system. Furthermore, a permit system replaces the final rights system where rights under certain conditions could be granted in perpetuity. 

Whether and to what extent women who are potential commercial water users will be able to access water right permits on an equal basis with men is closely linked to how the intersection between family-, land- and water law reform is addressed. In so far as married women in commercial or small scale farming areas are concerned, the CEDAW requires that land as well as water rights are registered in the name of both spouses. The new Water Act does not take any measures to ensure that married women may access water right permits on an equal basis with their husbands. The guidelines to the new Water Act do not require registration of both spouses under tenure systems where land is privately owned. By seeing water reform and family law reform as separate issues the legal structures underlying gender inequities concerning land and water availability are left out.

However, land and water are linked in important dimensions. An important change with regard to make space for disadvantaged groups, such as women and black small scale farmers in the communal areas, was to do away with the tie between land ownership and water rights as embedded in the Water Act of 1976. Communal area residents under common property systems can now apply and have applied for water permits in their own name. Under the Water Act of 1976, it was the District Administrator typically who applied for water rights on behalf of communal area residents. The problem under the new Water Act then becomes access to credit without title deed to land. This is where new and innovative approaches must be found to obtaining credit for both men and women under common property systems or where there is no formal title or deed to the land.

Removal of the priority date system coupled with the fact that application of water rights no longer is linked to land ownership may not in itself be sufficient to impact on the water availability of women. A factor that severely has hampered women water users in the communal areas is the distinction between domestic and productive water use. While women have been generally associated with domestic use,  large numbers of women have had difficulty in accessing resources to either begin irrigated gardens or to improve already existent ones. Women’s gardens as it turns out are as much a source of income as of food. The income is often used for meeting needs such as household food, education, clothing and medical needs. How credit schemes may be designed so as to respond to the need for improvement of the water sources women make use of in their production raises interesting questions in relation to article 14 of the CEDAW that sets out to ensure rural women a right to credit on an equal basis with men.

The sub-catchment councils have not yet started issuing permits. Legally it is the Catchment Councils that issue permits. The process is initiated at the Sub Catchment Council. There is a need for longitudinal studies focusing on the factors and forces influencing the number of female permit holders under the old and new water act. Large groups of women in communal areas rely heavily on the common water resources that are free of charge. What potential there is for larger-scale irrigation projects under these circumstances is unclear. Detailed knowledge about the water sources women are using and how they can be improved is thus needed. The latter is examined in an extensive survey undertaken in three catchments by the CASS water research team at the University of Zimbabwe. 

6.2 Water for Primary Use
In Zimbabwe the right to livelihood has been strongly protected in terms of a right to primary water. Primary use has been important to ensure women’s access to water. In Zimbabwe, as well as in Rhodesia, the right to primary water is deeply embedded in law, policy and custom.

Among large segments of the population water has been and is still seen as a common property resource. A series of studies of local water management illustrate this. In Nkai in Nyanga informal rules seems to be to the effect that poor women get away with breaking the rules limiting the resource to certain individual users (Cleaver 1998a, 357). The communal area population where Sithole did her study of dambo cultivation was of the view that ‘water should be available to all, rich or poor, but the person who impounds the water is the one who makes the river dry.’(Sithole, 2000) Sithole sees this as an expression of water as a fundamental human right. A more complex picture is provided by Dumisani Magadlela who analyses water conflicts between farmers within the Nyamaropa Irrigation Scheme and local villagers (Magadlela, 1999, 127) As regards the customary principle of water as common property his study shows that state initiated irrigation schemes that limit the access of outside users in times of scarcity, such as drought, are not generally accepted.

The right to livelihood in terms of water for basic needs is given high priority in Zimbabwe’s new Water Act. In the same vein as the old Water Act the new Water Act defines water for primary use as a social good. Under the new Water Act, it is only water used for commercial purposes that requires a permit in terms of Section 34. It states that:

‘No person shall abstract water for any purpose other than primary purposes except in terms of a permit’. 

It follows from the ZINWA Act Section 41 that only permitted water is subject to the user pay principle in terms of the new water levy. Section 2 of the Water Act of 1999 defines primary purposes in relation to the use of water as: 

(a)	‘the reasonable use of water -

(b)	for basic domestic human needs in or about the area of residential premises; or

(c)	for the support of animal life, other than fish in fish farms or animals or poultry in feedlots;

(d)	for the making of bricks for the private use of the owner, lessee or occupier of the land concerned; or

(e)	for dip tanks’.

In Zimbabwe, the user pay principle as adopted in Rio and Dublin, is gradually making its mark on water pricing and water subsidies policy. The reform process is a site of tensions and conflicts between values and principles embedded in liberal economic thinking and more welfarist concerns embedded in both human rights principles and African customary laws. The resistance towards the user pay principle and the conception of water as an economic good is partly rooted in the strong protection the right to primary water has had and still has in both national and customary law. But the scepticism towards the new water levies is above all rooted in the fact that the money is not earmarked for local management but is going to fund the new central water management body Zimbabwe National Water Authority which arguably is not accountable to its users (ZINWA). A factor that in practice is likely to undermine the economic basis is for a new water management system, based on the user pay principle, is the Government’s ‘fast track land reform programme’ aiming at compulsory acquisition of about 3000 commercial farms for the purpose of resettlement within December 2000 without any infrastructural investment.

The Draft Water Management Strategy for the Government of Zimbabwe emphasises the need to take the situation of declining government funding into account (Government of Zimbabwe, 1999, pp 103-105). The previous policy viewing water as a social good to be largely funded by government is now regarded as unsustainable and not promoting economic utilisation of water. In its discussion of the user pay principle, the Draft Water Management Strategy for the Government of Zimbabwe, emphasises that the principle, in order to be socially and morally acceptable, requires subsidies to vulnerable groups. It is suggested that the targeted subsidies could include both the urban and rural poor. The National Rural Water Supply and Sanitation Programme (NRWSSP) has so far provided boreholes and pumps without payment for household consumption. Consultants now argue that lower level subsidies and increased responsibility should be encouraged to increase commercial use of borehole water (Robinson, 1998, 37). In a similar vein, smallholder irrigation schemes are assumed to be better off when ongoing subsidies are replaced by government giving one-off capital subsidies combined with handing over the ownership.

It is women who are the main users of water provided by the Rural Water Supply and Sanitation Programme. Women are also beneficiaries of the smallholder irrigation schemes. Neither the Draft Water Management Strategy nor the Draft Report on Targeted Water Price subsidies provide any empirically informed analysis as to what will happen to rural women’s access to water under a more individualised and cost effective regime (Robinson, 1998, Robinson, 1999). 

In assessing the consequences of such a policy for women it is important to have in mind how small-scale communal farmers are differentiated. Communal farmers are not a homogenous group. Within the communal lands commercially successful farmers live side by side with poor farmers. Women are to be found in both groups. The proposed change may well be to the effect that well-to-do female farmers in the communal lands will be able to develop their enterprises. Yet, on the other hand it is important to ensure that borehole facilities are provided free of charge so as to ensure that the needs of the poor are fulfilled.

How the user pay principle will affect female water users within projects such as the Rural Water and Sanitation Programme is a critical area of study for women’s law research. The impact of this policy on the customary principle of water as a common property resource should also be given attention.
7. Participation
Women’s participation in water management is seen by, by both international and national policy makers, as a condition for a more equitable and sustainable system. Women’s low participation in the new water management bodies raises a number of difficult issues as to what measures should be taken to enhance women’s participation. Should affirmative action be used to rectify the existing inequities? Given the contentious relationship between women’s right to representation as citizens and their right to be consulted as family and local community members would indirect methods, such as gender sensitive consultation methods be more appropriate? Are there ways of conceptualising stakeholders or of organising water management that would be more effective integrating women than the current model?

7.1 Zimbabwean Law and Policy Concerning Participation
The new Water Act introduces a management system based on stakeholder representation. The new management units are the catchment council and the sub-catchment council (s.21). Zimbabwe has been divided into 7 catchments following the main river systems and a series of sub-catchments within each catchment. It is within the power of the catchment council to make catchment outline plans with ZINWA for the water management in the area. Furthermore, it has power to issue permits and to monitor compliance with the standards set by the act in general. 

The idea underlying the user based water management model is that community involvement will lead to a more efficient, democratic and sustainable water management system. Water catchment regulations define who the water users in the river system shall be and the manner in which they shall be elected or appointed (s 20). In accordance with the Water Catchment Council Regulations the ‘stakeholder groups’ that are to be represented are:

•	•	rural district councils;

•	•	communal farmers;

•	•	small-scale farmers;

•	•	larger scale farmers;

•	•	urban authorities;

•	•	large-scale mines;

•	•	industry and other stakeholder groups the community may define.

Within these stakeholder groups women are eligible on an equal basis with men. The new Water Act and the statutory instruments regulating elections to catchment and sub-catchment councils and the Draft Water Resources Management Strategy for the Government of Zimbabwe are all silent about the ways and means of enhancing women’s participation. Although the need to adopt measures has been addressed in specific documents on gender and water management, the gender issue has not been on the agenda in the seminars that have been convened to discuss the implementation of the new Water Act with the stakeholders.

One of the recommendations made by the Zimbabwe Women Research Network in their consultancy report ‘A Report on Gender Perspectives in Water Resources Management’, was that special measures had to be taken to ensure equitable representation of women’s needs and priorities. The emphasis in the consultancy report was, however, on an indirect approach on how to mainstream gender perspectives in water resources management. The major issue was not that of ensuring equal representation and to empower women in the new water management bodies. Rather, a series of recommendations were presented as to how to increase the gender awareness of the representatives. Furthermore, measures to ensure that a gender sensitive stakeholder consultation would become part and parcel of planning and decision-making process were also made (ZWRCN, 25). 

The inadequacy of this indirect approach is reflected in the low number of female representatives in these bodies. In the Mazowe there is one female leader of one of the sub-catchments. In the Sanyati two headmen have selected women to head the Ward Water Development Associations in the Communal Areas along the Mupfure River. This is a marked departure from the overwhelming male dominance to date. Only one of the representatives on the ZINWA Board is a woman. While some catchment councils have no female representatives a few have between one and two. At the sub-catchment council level there are more female representatives. Some have up to two members. There are also a few female leaders. Most of the women who are represented are divorcees or widows. One of the sub-catchment council members in the Mazowe is for example, a widow. Although Zimbabwean women have had full legal capacity for 20 years a large number of husbands still refuse to permit their wives to go to public meetings or hold political office. The majority of women who are present at the catchment and sub-catchment council meetings are the secretaries. The two pollution control officers for the Sanyati are women as are the two community development officers. These of course, are not part of the representative structure. Although they do attend and participate in meetings.
7.2 Direct or Indirect Representation
Affirmative action, as embedded in the Women’s Convention, is a measure aimed at creating substantive equality. In contexts and settings where customary norms and practices lead to women refraining from exercising their political rights, reserved seats for women have been encouraged by human rights bodies such as the CEDAW. In Zimbabwe the use of affirmative action in favour of women, as opposed to positive discrimination on the basis of race, has given rise to considerable political controversy. Traditional culture, the argument goes, have their own norms of decision-making that are more effective in voicing women’s concerns than formal rules of representation. 

The argument of custom and culture has carried considerable weight in the water reform process. The discussions I had with government officials, consultants hired by WRMS, female sub-catchment members, black male sub-catchment members and female community development officers, are illustrative. The principle of equal status and representation as laid down in international legal instruments, such as the Women’s Convention, was by and large, seen as an external imposition. Most of the people I talked to argued that instruments like the Women’s Convention or principles imposed through conditions for funding, overlooked people’s self determination, freedom and right to culture and custom. As regards water management both the men and women I talked to argued that women were happy to let the men represent them as they have always done. They maintained that men usually consult with women first or come back to consult. It was a commonly held view that women neither have the time nor the interest in going to meetings. Women are interested in working for their families and the local communities and want to see how participation in meetings may contribute to increase their welfare here and now. Furthermore, it was emphasised by one male official that gender was social. What mattered, according to him, was the attitude and the sense of common responsibility of the representative and not biological sex as such. According to him, men and women in the community choose a responsible person to represent them. 

How should we deal with this resistance to women’s participation from a human rights perspective? The capability approach suggests we pay attention to functions. The overall concern is whether and to what extent women obtain an opportunity to express themselves and influence decisions that concern their lives. In order to assess whether women actually have an opportunity to express themselves locally and whether their concerns are given voice and taken into consideration when decisions are made at catchment and sub-catchment level, we need empirical insight into the actual consultation process. 

There is a growing body of literature on the role of women in local water management. Many of these studies suggest that the introduction of formal water management institutions, even when there are rules that insure the representation of a large number of women, have had an adverse effect. An example is the Rural Water and Sanitation Programme in Zimbabwe, which falls under the auspices of the Ministry of Local Government. The aim of this programme, which is funded by a number of international donors, is to facilitate water for primary use in rural areas through construction of boreholes. The day-to-day management of these boreholes is undertaken by the formation of local water point committees. As a recognition of the important role that women play as water managers the rules specify that 3 out of 4 members shall be women. One critique that has been raised against this programme is that the model is alien to the way in which people on the basis of custom and tradition organise the management of water (Cleaver, 1998 b, pp 354-355). Frances Cleaver’s study from Nkai concludes that there is little evidence that participation on committees is either empowering to women or necessarily efficient in terms of water management. In Nkai, women participated prominently in the community meetings, being the majority of resident adults in the area. From a functionalist perspective informal institutions with their customary procedures seemed to have by far greater effect to realise women’s ability to participate in local political decisions affecting their lives than the affirmative action development project model.

I am not aware of any systematic study of whether and to what extent male representatives from the local community voice the concerns and interests of women. There is, however, a growing body of empirical research showing the common and differing priorities and concern of women and men in local water management (Cleaver, 1998 b, p 351). Cleaver’s research showed that men who were concerned in accessing water for cattle were concerned with distance and quantity while women, primary concerned with water for domestic use balanced distance against quality much more carefully. The argument of traditional culture as a harmonious and uncontested set of norms is certainly challenged by insight into the dynamics of water management in local communities. 

A research team at the Centre of Applied Social Studies at UoZ is presently carrying out a survey in three catchments that hopefully will provide information about whether and to what extent male representatives consult with individual women or groups of women. The team observed three consultation meetings that the Mazowe Catchment Council held with local stakeholders about what principles of water allocation should be adopted in the catchment. According to the researchers, no women were present in these meetings that gathered both communal and commercial farmers in the area. Gender sensitive methods of consultation, such as gathering men and women in separate groups, was not used in any of these meetings. In one of the Lower Manyame sub-catchment council meetings that I attended the chief had called all the male headman in his chieftain ship to receive information about the new Water Act. The Chief who is a well educated man was of the view that female representation was a problem because it interfered with custom.

Drawing attention to how power relations embedded in classed and gendered access to social and economic resources influence property disputes a number of scholars have been pessimistic as to the role of law in the process of development (Stewart, 1993, Paliwala and Adelman, 1993; Griffiths, 1998). My impression is that female representation is a factor that under the circumstances may make a difference. One female sub-catchment member in the Mazowe that I have met on a couple of occasions has for example succeeded in applying for a water permit on behalf of a group of women in her local community. During the meetings and workshops she has attended I have been amazed by the way she has approached representatives of donor organisations, members of WRMS and Government to access funding. Her strong personality, educational background and status as a widow are some factors that seem to matter. The Mazowe Catchment Council, it should also be had in mind, has all along been in the forefront of the reform and explicitly welcomed female participation. Although with the current crisis she has been unsuccessful in finding funding for the dam project.

Regardless of the gendered organisation of many local communities and the prevailing notion of democracy as a local consultation process, the argument of affirmative action is gradually gaining ground in Zimbabwe. The low number of women elected to local government, Rural District Council, is increasingly perceived of as a problem by women’s groups as well as different political parties. A study carried out by Amy Tsanga and Rodgers Mozhenty in December 1997 sought to find reasons for the poor participation of women in councils to explore the prospects for changing the status quo. Whilst on the whole, the need for women’s participation was recognised, the responses from political and traditional leaders to the quota system was negative (Mozhenty and Tsanga, 1997, 15). The process was seen as undemocratic and a form of imposition of leaders. The underlying assumption seemed to be that women would simply be imposed without looking at their abilities to tackle the job. Yet, there was a firm belief that certain problems, which affected women, would be better addressed and understood by women. The research report thus recommended that workshops be held so as to explain more carefully the workings of the quota system. They assumed that local communities would agree that women be elected in order to address their legitimate concerns in the relevant fora. Such an approach might have yielded results if applied in the elections of members to catcments and sub-catchment councils.

In as far as the impact of the water reform process on women’s access to water there is a need of qualitative in depth studies that observe the interaction between local decision making processes and sub-catchment and catchment councils over time. This should be done with emphasis on how women’s needs and concerns are articulated at the local level and integrated in the formal planning- and decision-making bodies. We need more information about the experiences of the female catchment and sub-catchment council members. How influential have they been? Has their participation made any difference for other women in their local community? My impression is that there are substantial variations in the influence women can exercise.
7.3 Gender Sensitive Stakeholder Definition/Third Tier Inclusion
To effectively voice different groups of women’s concerns more situation sensitive and responsive measures than quotas are required. 

How stakeholder groups should be defined to voice the concerns of women water users in the two main land tenure systems where women are the main cultivators, resettlement areas and communal lands is a critical issue that not has been addressed in GOZ water reform policy. Given the important role women play in water-point committees this organisational entity could, for example, be given status as a stakeholder group. In a similar vein, we may ask whether a third tier, such as the water point committees, be included in the management system in order to include the women that already are active at the local level. Some recent research suggests that the water point committee is not an institution that automatically leads to women’s empowerment (Wachtmeister, 2000). This begs the question as to what measures should be taken to empower the women on these committees. Inclusion in the national water management system is certainly a factor that would rise the status of this local structure. The travels, the access to information and education that go with external representation are all factors that would contribute to enhance the status of the water point committees.

Reform along these lines would represent a gender-neutral approach that, unlike the present water management model, takes the lived realities of women as starting point. Such measures would be important to create substantive equality and come to grips with the indirect discrimination that is a result of the present management system. Such an approach would contribute to prevention of indirect discrimination by bridging the distinction between water for primary and commercial use that underlies the present management system where water for primary use, such as the Rural Water and Sanitation Programme, is placed under the Department of Rural Water and Sanitation Programme while water for commercial use falls under the new water management system in terms of ZINWA and Catchment and Subcatchment Councils. Inclusion of the local level would give a voice to water the female (and also male) users that, as a result of the emphasis on productive as opposed to primary water, are almost excluded under the present water management system. As observed by the CASS team that systematically has participated in catchment and sub-catchment meetings the emphasis on ‘productive water’ has been to the effect that the concerns of the primary water users that don’t pay for their water is seen as irrelevant or unimportant in this fora (Derman et al, 2000).

8. Conclusion
As a response to the problems that have been encountered in putting women on an equal footing with men in water reform a women’s human rights based framework has been presented. Four major concerns that need to be addressed have been pointed out: First, to ensure equality in water reform a strategy superseding the dichotomous perception of water reform as a public and not a private issue is needed. Second, to put domestic and productive work on an equal footing in relation to water reform a strategy reconciling the divide between productive and domestic water use is necessary. Third, a water management model that takes measures, such as affirmative action and a gender sensitive conception of stakeholder, is needed to ensure women’s political rights. Fourth, any reform, in order to be successful, will have to include means to strengthen women’s social, economic and educational resources, knowledge of the new water law, and ensure that women are in positions of political leadership.

In terms of strategies for change it must be borne in mind that the nation state is no longer the sole implementing agency of reform policies or human rights. A wide range of international actors are, as we have seen, involved in the water reform process. One challenge for women’s human rights activists in this changing world is to build alliances between local water user groups and national and international human rights actors. To have an impact on laws and policies a wide range of international and national actors must be addressed. International donor agencies are with their recent emphasis on a human rights based development approach an increasingly important target group, both for women’s human rights activists in the South and the North.