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Legal Pluralism and Hydropolitics in Namibian

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Legal Pluralism and Hydropolitics in Namibian Clever Mapaure, 200403796 LLM Thesis. University of Namibia: 2009 “WATER WARS”: LEGAL PLURALISM AND HYDROPOLITICS IN NAMIBIAN WATER LAW A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE DEGREE OF MASTER OF LAWS (LLM) OF THE UNIVERSITY OF NAMIBIA BY CLEVER MAPAURE 200403796 NOVEMBER 2009 Main Supervisor: Emeritus Professor Manfred O. Hinz Co-supervisor: Dr. Oliver C. Ruppel © 2009. No part of this Thesis may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission of the copyright owner. i Clever Mapaure, 200403796 LLM Thesis. University of Namibia: 2009 SUPERVISORS’ CERTIFICATE I, Professor Manfred O. Hinz, hereby certify that the research and writing of this Thesis was carried out under my supervision. Professor Manfred O. Hinz Date ……………………………………………………………………………………. I, Dr. Oliver C. Ruppel, certify that the research and writing of this Thesis was carried out under my co-supervision. Dr. Oliver C. Ruppel Date ii Clever Mapaure, 200403796 LLM Thesis. University of Namibia: 2009 DECLARATION I, the undersigned, hereby declare that the work contained in this Thesis for purposes of obtaining my degree of Master of Laws, is my own original work and that I have not used any other sources than those listed in the bibliography and/or quoted in the references. Clever Mapaure Date iii Clever Mapaure, 200403796 LLM Thesis. University of Namibia: 2009 To My Grandmother, Ethel Musati (92) Who knows water law without having had a teacher to lecture her iv Clever Mapaure, 200403796 LLM Thesis. University of Namibia: 2009 Acknowledgements It is the truth about all research that one can never be successful without the input of others. This dissertation is a product of my input as made possible by the assistance of others. I thank The Almighty God for making everything connected to my Thesis a success and more importantly for saving my life from an almost fatal car accident which I was involved in, in the process of doing field research. I also express my sincere gratitude towards BIOTA Southern Africa for sponsoring me throughout my LLM Course. I express my profound gratitude to Emeritus Professor Manfred O. Hinz for all the support he gave me in this course including the supervision hereof as my main supervisor. My gratitude also goes to Dr. Oliver, C. Ruppel for co-supervising me in this course. Similarly I thank Dr. Thomas Falk for his guidance in the initial stages of this Thesis. I thank all the respondents in Kavango, Otjozondjupa and Ohangwena Region for cooperating with me in the process of interviews I had with them. Their names are in the list of Fieldnotes. The same appreciation goes to all Regional Governors and traditional leaders in the regions and communal areas where I did my research for their cooperation and consent for me to wander around their communities researching. My appreciation is also extended to the Drivers who drove me throughout the areas of research, namely Aubrey Ndlovu and Jackson Damaseb. The same goes to my interpreters in the regions who created a link between me and the communities in terms of communication. I also thank my whole family and colleagues for moral support. Mapaure Clever Master of Laws (LLM) University of Namibia Windhoek November 2009 v Clever Mapaure, 200403796 LLM Thesis. University of Namibia: 2009 Contents List of Figures .................................................................................................................. 15 List of Tables.................................................................................................................... 16 Table of cases ................................................................................................................... 17 Abstract ............................................................................................................................ 20 Abstract ............................................................................................................................ 20 Chapter 1 General Introduction 1. Background to the study ............................................................................................. 21 2. Statement of the problem ........................................................................................... 25 3. Aims of the study ......................................................................................................... 28 4. Significance of the study ............................................................................................. 29 5. Research questions ...................................................................................................... 30 6. Delimitation and scope of the field of study ............................................................. 31 7. Arrangement of the Thesis ......................................................................................... 33 vi Clever Mapaure, 200403796 LLM Thesis. University of Namibia: 2009 Chapter 2 Literature Review and Theoretical Framework 1. Introduction ................................................................................................................. 37 2. Will a thirsty world fight over water? ....................................................................... 38 3. Ownership of water in general ................................................................................... 40 4. The Namibian legislative framework ........................................................................ 42 4.1 Public and Private Water ......................................................................................... 43 4.2 Riparian ownership principle .................................................................................. 49 4.3 Public trusteeship principle in Namibian water legislation ..................................... 50 4.4 Ownership of water on communal land .................................................................. 53 5. Legal pluralism and water law ................................................................................... 56 5.1 Theoretical background ........................................................................................... 56 5.2 Water law and sector reform in a pluralistic society ............................................... 62 7. Water rights reforms: theoretical models and approaches ..................................... 65 9. Definitions and conceptual framework of topical issues ......................................... 69 9.1 Water wars............................................................................................................... 69 9.2 Hydropolitics ........................................................................................................... 70 9.3 Decentralisation and Polycentrism .......................................................................... 72 9.4 First and second order scarcity ................................................................................ 74 vii Clever Mapaure, 200403796 LLM Thesis. University of Namibia: 2009 Chapter 3 Methodology 1. Introduction ............................................................................................................... 77 2. Research paradigm ..................................................................................................... 78 3. Qualitative or Quantitative Research? ...................................................................... 79 3.1 The discussion ......................................................................................................... 79 3.2 Position of the researcher ........................................................................................ 80 4. Population and sampling ............................................................................................ 83 5. Instrumentation ........................................................................................................... 88 5.1 Questionnaires ......................................................................................................... 88 5.2 Interviews ................................................................................................................ 89 6. Procedure and time frame .......................................................................................... 91 7. Data Analysis ............................................................................................................... 92 8. Theoretical foundation of data analysis methods ..................................................... 96 9. Validity and reliability ................................................................................................ 97 10. Limitations and Practical Lessons ......................................................................... 100 11. Conclusion ................................................................................................................ 101 viii Clever Mapaure, 200403796 LLM Thesis. University of Namibia: 2009 Chapter 4 The Ownership and Control of Namibia Waters in Historical Perspective 1. Introduction ............................................................................................................... 102 2. Background to the development of Namibian water law ...................................... 102 3. Roman Water Law .................................................................................................... 104
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