Building bridges between regulatory and citizen space: civil society contributions to water service delivery frameworks in cross-national perspective.

• Author: Morgan, Bronwen

Abstract

This paper explores both the direct and indirect roles of civil society in regulation for service delivery of water services, drawing on examples from Argentina, Bolivia, Chile, France, New Zealand, and South Africa jurisdictions that have, in varying extents, involved the private sector was involved in the delivery of water services. The paper introduces the idea of building bridges between regulatory and citizen space, which captures the importance of mechanisms that respond to disruption and protest in ways that routinise their impact, while still remaining responsive to the concerns expressed by protestors. Additionally, even where no disruption is present the gulf between citizen concerns and the approach of regulators can still be wide; the role of the end-user can become displaced particularly when regulation is perceived as building a framework for stable transactions between government and service provider. Morgan traces the ways in which the problems caused by these 'transactional regulation' can be broken down and made more tractable by understanding key contrasts that underlie this gap between regulatory and citizen space.

Keywords

Regulation, Civil Society, Water Service Delivery, Human Rights, Social Justice, Case Study, Argentina, Bolivia, Chile, France, New Zealand, and South Africa.

1. Introduction

   The provision of urban water services is an essential service that provides a basic good critical to life. Since the early 1990s, important changes in the structure of water service provision mean that the politics of access to water, especially in relation to water service delivery, are increasingly regulatory politics. Whether water services are delivered by public or private entities, they increasingly operate at arms length from traditional representative politics and under the supervision of some kind of regulatory body. Yet the politics of access to water are also a passionate flashpoint for popular social and cultural concerns, often expressed in the language of human rights or through the action of direct protest.

   The participation of civil society is often presented as a 'solution' to both the technocracy of regulatory politics and the unruliness of populist direct action. This article explores both the direct and indirect roles of civil society in the regulation of water services, drawing on examples from research conducted in 2003-4 in Argentina, Bolivia, Chile, France, New Zealand, and South Africa. (i) The findings emerge from events that occurred during the decade between 1995-2005. The research focused on jurisdictions that have involved the private sector was involved in the delivery of water services, even if only partially. The research design focused in detail on one or two disputes in each case study country in order to draw out the possibilities for routinising disruption.

   On the one hand, civil society can assist in shaping regulatory frameworks by helping to routinize procedures and institutional interactions--often through the introduction of legislative, regulatory and custom-based practices that provide a stable framework for actors with widely diverging values to interact. On the other hand, civil society organizations are often important for the organization and expression of more 'unruly' politics, channelling disruption and direct protest to test the boundaries of taken-for-granted choices about regulatory frameworks. There is an important dialectic between routinization and unruliness, and the article explores the role of civil society not only in shaping regulatory frameworks for the delivery of water services but also in challenging those frameworks through activism. Case studies that foreground disruption and direct provide 'limit cases' to discussions of governance that too often prioritise routinisation, and bring the important dimension of agency to the fore (Morgan 2007a).

   The relationship between routinization and unruliness can be understood better by categorizing the gaps between regulatory and citizen space that emerge in the case studies according to key contrasts that underlie them. One contrast, especially salient to the perspective of civil society actors, is between strategies and mechanisms that seek to build political agency on the one hand, and those that aim to embed responsible consumer behaviour on the other hand. Another contrast, especially salient to the perspective of the regulatory actors that civil society seeks to influence, is between 'transactional' and 'political' regulation. Although these contrasts are related to each other, the gulf between citizen concerns and the approach of regulators is often wide, and not necessarily simply as a consequence of familiar problems such as information asymmetry. Rather, there may be profound differences in perspectives about what counts as an important problem, as well as the solution to such problems. In particular, when regulation is perceived as building a framework for stable transactions between government and service provider, the role of the eventual user, consumer or citizen becomes displaced. As a result, their concerns are either marginalized, or made the province of a discretionary relationship between service provider and 'end-user', a relationship that is beyond the bounds of regulatory control.

   The article shows how comparative analysis of case study narratives can contribute to a process of building bridges between regulatory and citizen space. 'Bridges between regulatory and citizen space' are mechanisms, strategies or institutional design choices that respond to disruption and protest in ways that routinise their impact, while still remaining responsive to the concerns expressed by the protestors. The findings illustrate that civil society becomes involved in the regulation of water service delivery in three principal ways: via traditional representative politics, via technocratic or expertise-based decision-making, and via directly participatory politics. The introduction of a regulatory agency into the policy mix does not have a systematic impact on the type of civil society involvement. Local-level governance of water services is correlated with civil society use of the judicial system, and developed countries offer more space to civil society in traditional representative politics. The article concludes with some tentative generalizations about when--and why--the involvement of civil society can bridge the gap between regulatory and citizen space in the provision of essential services. Where civil society involvement successfully shapes the regulatory framework for the production of water services, there is more chance of a political agency model being built, whereas when civil society seeks to influence the terms of consumption, it generates a responsible consumer model. To build successful bridges, tensions between the two models must be balanced, but numerous institutional vehicles can achieve this, as will be illustrated by the case studies, and by Tables A and B in the conclusion.

2. Civil Society Involvement in the Regulation ofWater Service Delivery

   The core of this article summarises findings from a cross-national research project focusing primarily on six case studies which were selected to vary along a number of different dimensions that explore a cross-section of possible governance contexts. They all involve one or more of what were, at the time of the research, the three largest multinational water companies. They include both developing countries and OECD countries (Argentina, Bolivia, Chile, France, New Zealand, South Africa), and a full range of different legal structures (three concessions, one management contracts, one privatisation, one public-private partnership).What follows are six brief and inevitably partial and compressed narratives that highlight different aspects of civil society involvement in the regulation of water service delivery in the six case studies. I take civil society in this context to refer to associations, organizations, or other collectivities (including spontaneous mobilizations of individual citizens) who play, or attempt to play, an explicit role in shaping the terms of water service delivery, but are not charged with either delivering the service or with directly regulating the framework for its delivery.

   The accumulated narratives that follow in this section aim to provide a basis upon which I attempt to systematize and generalize findings in the conclusion. However, the dispute-centred nature of the research means that the patterns identified in the case studies are not necessarily representative of the way things are done in the case study country as a whole. Nonetheless, all the interviews and documentary analyses were conducted with a careful ear for the specificity of the selected disputes, and in two cases (Chile and South Africa), those disputes originally selected were considerably de-emphasised. As a result, the Chilean case study focused instead on general patterns of regulatory governance in relation to water services, and the South African case study took a preliminary look at ongoing disputes in Durban and Johannesburg. With these caveats in mind, the table on this and the following page summarises the range of material originally selected (and in some cases later restructured) for research.

   2.1. Chile

   The case study of Chile stands out by virtue of the relative absence of major disputes over private sector involvement in the delivery of water services. This does not mean such involvement has gone uncontested, which is far from the case, but during the period of research the contestation rarely spilled over into unruly dimensions on the street nor was taken to court. Nor did civil disobedience in the sense of non-payment campaigns prevail. At the same time, civil society participation in more routine, technocratic processes (in particular the five-yearly tariff reviews conducted by the regulator)...