Water Runs Dry: Multinational Corporations and the Privatization of Water in African Countries

This paper seeks to explore the place of public law (that is, constitutional and administrative law) in the process of water privatization in Africa . The paper will problematize water privatization in the context of the concept of the weak state. The state, as conceived in orthodox terms, is continuously being weakened by the processes of globalization such as privatization. The result has been a transfer of considerable public power to private hands in a context in which the state has little or no regulatory capacity. By and large, this process has not embraced public law values (such as accountability, participation and fairness) with the result that democratic ideals have been compromised to the detriment of citizens, whose livelihoods and liberties have thereby been affected. Accordingly, water privatization in Africa has proceeded without suitable governance frameworks, as neoliberal values have trumped public law values. And as the market has taken over, the policing role of the state has diminished. In Africa , the weakening of the state has been exacerbated by development assistance initiatives, which are invariably the primary force behind water privatization experiments. In addition, development assistance initiatives often bypass constitutional accountability frameworks in the quest for speedy privatization. This serves to erode the regulatory capacity of the state even further.

In the absence of proper institutional frameworks regulating the use of the emerging private power, the citizens of many African countries have been left worse off after privatization. The question is whether public law reform can rescue the African state from this increasing emasculation, as it seen by citizens to be incapable of safeguarding their interests. Quite inevitably, many citizens are also beginning to question the legitimacy of the African state.

The paper examines how the privatization of the provision of water to multinational companies has enhanced their power. It will examine how this power is being exercised to the detriment of the livelihoods of the citizens of African countries. Water has, indeed, run dry. The paper will argue that in order to be successful (that is, efficient and democratic) water privatization processes must recognize and enforce public law values. In addition, it will be necessary to impose democratic controls on the exercise of the power of the multinational companies to ensure that citizens have fair access to water even in privatization contexts. In the final analysis, the paper calls for the reform of public law to accompany the on-going water privatization experiments. In particular, the envisaged law reform would establish suitable institutional frameworks for the regulation of private power.