REPUBLIC OF KENYA
MINISTRY OF ENVIRONMENT, WATER
AND NATURAL RESOURCES
The Status of the Nile River Basin Cooperative Framework 2010
By John Rao Nyaoro
The Nile River Basin Cooperative Framework Agreement 2010 negotiations started in 1997 to come up with a new Nile River Basin Agreement in the name “The Nile River Basin Cooperative Framework Agreement (CFA)”. The Negotiations started with the panel of experts drowned from the nine Nile Basin Countries namely Kenya, Uganda, Tanzania, Burundi, Rwanda, Democratic Republic of Congo, Ethiopia, Sudan, and Egypt with Eritrea only attending as observer. The panel of experts were under the guidance and advice of a world renowned International Water Law Professor, Prof. Stephen C. McCaffrey of the University of the Pacific and Mc. George School of law of USA. The Panel of experts assembled 39 article of the draft CFA based on the best practices. The 39 articles were fined distilled and expanded by the Negotiation Committee that presented the CFA for adoption to the Nile Council of Ministers (Nile-COM). The signed CFA provides principles, the scope of the framework and rights and obligations of the riparian states among other provisions.
The Agreed scope of the framework tells it all. The scope reads as follows:
“The present Framework applies to the use, development, protection, conservation and management of the Nile River Basin and its resources and establishes an institutional mechanism for cooperation among the Nile Basin States”
The Negotiated and signed CFA that was opened for signature on 14th May 2010 at Entebbe Nile Basin Initiative offices, if entered into force will allow the establishment of the Nile River Basin Commission. When established the Nile River Basin Commission would play a key and central role in the sustainable, peaceful utilisation of the Shared Nile River water resources. The Commission will act as a clearing house to new projects or planned measures in the Nile River basin and hence regulate the use of the basin water resources. Such a The Status of the Nile River Basin Cooperative Framework 2010 Regulator as a referee in a football field requires rules of the game. Such rules are better provided in the Negotiated Nile River Basin Cooperative Framework.
The Key provisions of the Nile River Basin Cooperative Framework are provided in articles 4 and 5 on equitable and reasonable utilization of the Nile River Basin water resources and causing no significant harm to the basin States. The other articles are to ensure that these two provisions are balanced and applicable.
The Nile River basin riparian states agreed to go to the negotiation table in order to come up with an agreement that has been freely negotiated and acceptable to them. Such an agreement would forestall the rights of the riparian States to utilize the shared water resources of the Nile River system in an equitable and reasonable manner and further put duty on the basin States not to cause significant harm to other riparian States. The two articles therefore balances the Right of the basin states to utilize the basins water resources with a duty not to cause significant harm to other riparian states. This can only be achieved if the basin states cooperate under the guidance
of a binding Agreement that provides the rights and duties of the basin states as provided in the negotiated Nile River Basin Cooperative Framework 2010 that today has been signed by six countries namely Burundi, Ethiopia, Kenya, Rwanda, Tanzania, and Uganda and fully ratified by the Republic of Ethiopia while the remaining five countries of Uganda, Kenya, Burundi, Rwanda and Tanzania are in their final stages of ratifications. Article 4 and 5 therefore, if implemented will give the required water security for the basin states.
Further articles 4 and 5 together with article 10 and 16 allows for the development of a new Nile River basin regime. The new Nile River Basin regime providing additional rules (both substantive and procedural rules), Norms (the expected behaviours of the basin states that is cooperation, equitable utilisation of the shared basin water resources and causing no significant harm to other basin states) based on principles of international water law and joint planning on the development and use of the Nile River shared water resources on the projects that could cause significant harm to other basin states.
The additional advantage of the basin regime once the Agreement is in force is that unlike the basin Agreement that is adopted through consensus the basin regime enjoys the rules of unanimity that is all the basin states must clear a particular project as in the case of Niger River basin Regime. It is the development of the new Nile River Basin Regime that will resolve article 14(b) on the water security.
In order to resolve article 14 (b) on the water security to enable all the Nile River Basin states to ratify or accede to the CFA 2010, it is important that a new Nile River Basin Regime be developed and added as an addendum to the CFA 2010 as was done to the Niger River Basin.
John Rao Nyaoro, HSC, BSc., LLM,
Ph.D. Candidate, Water Law and Policy
Director of Water Resources
A call for a renewed commitment to invest in an allinclusive Nile cooperation
The 8th Strategic Dialogue between the Nile Basin Initiative (NBI) and its primary donors ended on 31 October 2013 with a call from participants for a renewed commitment to invest in an all-inclusive Nile cooperation and to sustain the gains so far.
The Chairperson of the Nile Council of Ministers who is also South Sudan’s Minister of Electricity, Water and Irrigation, Hon. Jemma Nunu Kumba noted that while NBI has achieved a lot in the last 14 years, a lot still needs to be done to realize the Shared Vision.
Member States re-affirmed their commitment to and ownership of the Nile cooperative process and the sustainability of the NBI institutions. They called on Development partners to continue their unwavering support towards achieving the Member States’ development agenda.
Development partners pledged to work with NBI to enhance the institutional and financial mechanisms necessary to deepen the Nile cooperative process.
Participants underscored the importance of realizing benefits of Nile cooperation including investment projects This year’s annual event held from 28th to 29th October, 2013 was attended by members of the Nile Technical Advisory Committee (Nile-TAC) representing the ten NBI Member States, representatives of NBI’s Development Partners, the Nile Basin Discourse, Global Water Partnership Eastern Africa as well as Management of NBI.