12th Parliament 2017 – 2019 – Session 15

The memorandum of the Irrigation Bill provides that its principal object is to promote and regulate the development and management of irrigation in Kenya. If the Bill is passed, it will repeal the Irrigation Act (Chapter 347 of the Laws of Kenya) which is largely outdated and does not envisage small holder farmers and the private sector. Upon commencement of the new law, all irrigation development carried out in Kenya would have to be done under the new Act.

The Bill is one of the recommendations made in the draft National Irrigation Policy, 2015 (“Irrigation Policy”) which was tabled in the Senate for adoption on 10 October 2017. Initially, there were two similar Irrigation Bills, one introduced in the National Assembly and the other introduced in the Senate. However, the Senate Irrigation Bill was withdrawn to enable the lawmakers to focus on one Bill which must be approved by both Houses given that the Irrigation Bill is a Bill concerning County Governments.

Following its first reading in the National Assembly, the Bill was automatically referred to the Agriculture and Livestock Committee of the National Assembly for consideration and public participation.

Highlights of the Bill

Definitions
The Bill defines key terms as follows:

“irrigation” to mean any process, other than by natural precipitation, which supplies water to crops or any other cultivated plants, livestock, aquaculture, and desired forest trees;
“irrigation scheme” to mean a systematic and orderly irrigation system covering a defined area of land regardless of the type or system of irrigation employed
The Bill also distinctly defines large scale; medium scale; small holder irrigation and drainage scheme; and small scale irrigation schemes but the provisions of the Bill do not provide any material differences in the treatment of the different categories of schemes.

The Role of the National Government
Unlike the proposal in the Irrigation Policy which recommends that the Cabinet Secretary responsible for irrigation (“CS”) which recommends that the National Government retains a policy making and oversight role whilst service delivery is devolved to a sector-specific body (in this case NIDA as defined below) and County Governments, the Bill mainly vests the mandate of implementation of the Bill including service delivery on the CS.

The CS’ functions shall include: (i) receiving and determining applications for any irrigation projects, including issuance of irrigation projects, including issuance of irrigation licenses for irrigation schemes; (ii) monitoring and enforcing conditions attached to the licenses for all irrigation projects; and (iii) maintaining storage investments for their proper use and implementation.

The Bill however provides that the CS may exercise any of its duties and functions through the NIDA.

There may be a potential conflict of roles with County Governments and thereby retaining the regulatory bottleneck that currently exists due to poor coordination between the National Government organs and the County Governments.

Establishment of the National Irrigation Development Authority
The National Irrigation Development Authority (“NIDA”) is established as the successor of the National Irrigation Board established under the Irrigation Act (Chapter 347 of the Laws of Kenya) albeit with expanded mandate, functions and powers.

NIDA’s main functions will include:

developing and improving irrigation infrastructure for national and public schemes;
providing irrigation support services to private, medium and small holder schemes in consultation with County Governments and other key stakeholders, and;
providing technical advisory services to irrigation schemes in design, construction supervision, administration operation and maintenance under appropriate modalities, including agency contracts.
Other functions of NIDA that may have an impact of the private sector include:

in consultation with County Governments, facilitating the formation and strengthening of water users’ associations at scheme level for operation, maintenance and management,
facilitating linkages between and among the National Government and County Governments, private sector, civil society organizations, communities and other stakeholders for the provision of support services to irrigation water user association
in collaboration with County Governments, gathering information and maintaining databases on irrigation development and management, including data on irrigation water supplies, demands, projects, irrigated areas, management performance, potential for expansion and human resources
in collaboration with County Governments and other stakeholders, promoting the marketing and processing of crops, animal and fish products grown or produced on national and other irrigation schemes and to liaise in this regards with other responsible state agencies and organizations
advising the CS, through the Principal Secretary, on any matter in connection with the development, maintenance, expansion and availability of irrigation support services.
Under the Bill, NIDA shall primarily exercise its powers and functions through agency contracts, unless in the opinion of NIDA and with the permission of the CS, such powers and functions are best performed directly by NIDA.

The NIPD shall be a national government organ headed by a Chief Executive Officer and a Board whose chairperson shall be appointed by the CS.

Role of the County Government
Each County Government may within its area of jurisdiction establish a county irrigation development unit to carry out the Constitutional irrigation mandate of the relevant County.

The functions of the county irrigation development unit are vast and range from formulating County policy and strategy in collaboration with various stakeholders; developing and monitoring the County irrigation database to streamlining the statutory obligations in relation to the environment, water and health.

Irrigation Services
The CS, in consultation with the County Government and other stakeholders, is vested with the obligation to ensure the adequacy and quality of water for irrigation purposes throughout the country.

In this regard, the CS shall take measures to, among other things:

approve appropriate tariff structures and make arrangements with the Water Resources Authority in respect of requisition of irrigation water in bulk;
develop a mechanism on return on investment formula resulting from construction of irrigation schemes using public funds; and
develop guidelines on private sector involvement at various stages of the irrigation project implementation cycle.
In addition, in respect to land the CS shall set apart land and access rights for which an irrigation water permit may be issued by the Water Resources Authority, and an irrigation license may be issued upon consultation with the National Lands Commission. Moreover, when it comes to public land needed for irrigation services the CS must ensure the necessary steps are taken to compulsorily acquire the land.

Water Users Association
A water users association may be formed by a residents of a catchment area who is a crop farmer, livestock producer, fish pond user, or small rural industry entrepreneur or other users of water for irrigation from a common water source, with the purpose of operating and maintaining a scheme established in the association’s area of coverage. A water users association shall be entitled to set and collect from its members, irrigation service fees based on the actual costs of operation and full maintenance of the scheme.

The rationale for the formalization of water users associations is to address the current challenge of low capacity among the existing water users associations, cooperatives and self-help groups majority of which are unregistered entities. The Bill permits the water users associations to set member fees in order to enhance the associations’ capacity to perform their mandates.

However, the Bill does not set out a clear roles and responsibilities of the irrigation water users associations (IWUAs) in contrast to the recommendations made in the National Irrigation Policy. If the provision is passed as it is, it will mean that the IWUAs will continue being responsible for setting their own mandate, and in turn, fix membership fees commensurate to the functions performed.

A water users association may, subject to approval by the CS and the National Treasury, enter into cost-sharing agreements with the National Government, County Governments, private sector institutions or other farmers’ associations for implementing improvements, modernization, establishment or expansion of a scheme.

The Bill also requires each water users association to establish a Dispute Resolution Committee that consists of at least 3 members selected by its governing body.

Dispute Resolution
Disputes related to irrigation and drainage scheme development, management, water allocations and delivery, financing, property, operation and maintenance and other matters shall first be resolved at the irrigation water users association or at scheme level, by the Dispute Resolution Committee mentioned above

The Bill provides for an appeal to a relevant regional committee. The composition of the regional committee is not provided for in the Bill. An aggrieved party may make a further appeal to the Water Tribunal. Any party aggrieved by the decision of the Water Tribunal may apply for review to the Environment and Land Court.

Offences
The Bill also sets out the following offences:

Willful damage of an irrigation structure, water course, equipment or other appliances shall be liable upon conviction of a fine not exceeding one million shillings ; or imprisonment for a term not exceeding 24months or both
Destructive Practices such as destroying a water catchment area, or permitting animals to damage irrigation areas or infrastructure shall be liable upon conviction to a fine of not more than five hundred thousand shillings or to imprisonment for a term not exceeding 12months or both.
Setting fire any person who causes an irrigation scheme to be set on fire shall be liable upon conviction to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding 12 months or both.
Harmful chemicals applied on an irrigation scheme prohibited under the Principal Act shall be liable upon conviction to a fine not exceeding one million shillings or to imprisonment for a term of five years or to both.