COHRE Housing Rights MDG Policy Water Sanitation 2009

Copyright Š 2009 Centre on Housing Rights and Evictions (COHRE), Geneva, Switzerland All rights reserved. Any reproductions, in whole, or in part of this publication must be clearly attributed to the original publication and the authors notified.

This publication may be cited as: COHRE, The significance of human rights in MDG-based policy making on water and sanitation: An application to Kenya, South Africa, Ghana, Sri Lanka and Laos (Geneva: COHRE, 2009)

ISBN 978-92-95004-60-3 The Centre on Housing Rights & Evictions is a non-profit organisation registered in the Netherlands, with registered offices in Brazil, Ghana, Sri Lanka and Switzerland.

Cover photo: WaterAid/Jon Spaull

Right to Water Programme Centre on Housing Rights and Evictions 83 Rue de Montbrillant 1202 Geneva Switzerland Tel: 41.22.734 1028 Fax: +41 22 733 8336 Email: water@cohre.org Web: www.cohre.org/water, www.cohre.org/sanitation

Table ofof Contents Table contents Acknowledgements

i

List of abbreviations

ii

1. Human rights standards and the MDG on water sanitation

1

2. Executive Summary: Human rights gaps and challenges in MDG-based policies

5

3. Extent to which human rights and key human rights principles are reflected in MDG reports, MDG-based Poverty Reduction Strategies and sectoral strategies

7

3. 1. Kenya

7

3. 2. South Africa

12

3. 3. Ghana

16

3. 4. Sri Lanka

20

3. 5. Laos

25

4. The way forward in integrating human rights in MDG-based water and sanitation policy making: Policy recommendations and good practices

30

Acknowledgements Authors Editors:

Ashfaq Khalfan and Sonkita Conteh

Kenya:

Kerubo Okioga and Ashfaq Khalfan

South Africa:

Sonkita Conteh and Ashfaq Khalfan

Ghana:

Sonkita Conteh

Sri Lanka:

Rasika Mendes

Laos:

Lara El-Jazairi and Thorsten Kiefer

An earlier draft of this publication was commissioned by the Office of the UN High Commissioner for Human Rights for the project ‘Dialogues for Action: Human Rights and MDGs’, a collaborative undertaking between OHCHR, UNICEF and the University of Oslo.

The views in this publication do not necessarily represent those of the United Nations or OHCHR. This publication benefitted from interviews and documents submitted by the following persons: 1.

2.

3.

4.

5.

Mac Darrow, Office of the UN High Commissioner for Human Rights Malcolm Langford, Norwegian Centre for Human Rights Avi Sarkar, Chief Technical Advisor MEK-WATSAN, UN HABITAT, Lao PDR Khamphong Chaysavang, Community Development Officer, UN-HABITAT, Lao PDR Noupheuak Virabouth, Deputy Director, General Director of the Water Supply Authority, Lao PDR 6. Dr. Nouanta Maniphousay, Director, National Centre for Environmental Health and Water Supply, Lao PDR 7. Mr. Phomma Veovaranh, Project Director, Northern and Central Regions Water Supply and Sanitation Project, Ministry of Public Works and Transport, Lao PDR

Organisations are listed for identification purposes only. Sole responsibility for any errors rests with the authors. This publication is based on information available to COHRE up until January 2009.

i

List Listofofabbreviations abbreviations CESCR ICESCR MDGs UNDP UNICEF WHO

Covenant on Economic, Social and Cultural Rights International Covenant on Economic, Social and Cultural Rights Millennium Development Goals United Nations Development Programme United Nations International Children’s Emergency Fund World Health Organisation

Kenya CDF LATF MWI NEC NEMA NESHP NWSS PPIP-WSS WSTF

Constituency Development Fund Local Authority Transfer Fund Ministry of Water and Irrigation National Environment Council National Environment Management Authority National Environmental Sanitation and Hygiene Policy National Water Services Strategy Pro-Poor Implementation Plan for Water Supply and Sanitation Water Services Trust Fund

South Africa ASGISA DWAF GEAR

Accelerated and Shared Growth Initiative-South Africa Department of Water Affairs and Forestry Growth, Employment and Redistribution Strategy

Ghana GPRS II NEPAD NESP NWP RESP

Growth and Poverty Reduction Strategy 2006-2009 New Economic Partnership for Africa’s Development National Environmental Sanitation Policy National Water Policy 2007 Revised Environmental Sanitation Policy

Sri Lanka CBOs NWSDB PRS

Community Based Organisations National Water Supply and Drainage Board Poverty Reduction Strategy

Laos IEC NCRWSSSP NGPES PCU WATSANs

Health, Information and Communication Northern and Central Regions Water Supply and Sanitation Sector Project National Growth and Poverty Eradication Strategy Project Coordination Unit Water and Sanitation Associations

ii

1. Human rights standards and the MDG on water and sanitation This publication focuses on MDG Target 7, in particular target 7 C which aims to halve, by 2015, the proportion of people without sustainable access to safe drinking water and basic sanitation.

This survey draws from an analysis of selected national MDG-based policies and reports in the Asian and African regions and analyses them from a human rights perspective, identifying current trends and any critical gaps. It reviews the extent to which such documents are consistent with human rights principles and are conflicting or fail to reflect human rights principles. It concludes by asking how the existing gaps and challenges can be effectively addressed from a human rights perspective, providing policy recommendations and making reference to good practices.1 At the present time, at least 1.1 billion people are estimated to lack access to a safe water source and 2.6 billion are without basic sanitation.2 Each year at least 1.6 million children under the age of five die from drinking unsafe water, coupled with lack of sanitation. The MDG target is relevant to human rights standards as access to water and sanitation are elements of the rights of housing and health for example.3 The duties to provide water and sanitation are explicitly contained in the Convention on the Rights of the Child (Article 27) and the Convention on the Elimination of All Forms of Discrimination against Women (Article 14).

Virtually all States have recognised the right to water and sanitation in at least two political declarations.4 The Programme of Action of the 1994 Cairo Conference on Population and Development and the Habitat Agenda, endorsed respectively by 177 and 171 States (representing all the States represented at the conferences), recognised that the right to an adequate standard of living encompasses access to both water and sanitation.5 In 2007, 37 countries from the AsiaPacific region at the 1st Asia-Pacific Water Summit recognised “the people’s right to safe drinking water and basic sanitation as a basic human right.”6 Most recently, eight South Asian governments7 adopted the Delhi Declaration at the 3rd South Asian Conference on Sanitation (SACOSAN III), which recognises that “access to sanitation and safe drinking water is a basic right, and accordingly national priority to sanitation is imperative.”8 The right to water has been recognised by States in a variety of other fora: the UN General Assembly,9 the Non-Aligned Movement10 and the Committee of Ministers of the Council of Europe.11

1

This publication builds on: Claiming the Millennium Development Goals: A Human Rights Approach (Geneva, OHCHR, 2008), available at http://www.ohchr.org/EN/PublicationsResources/Pages/RecentPublications.aspx .

2 See Meeting the MDG Drinking water and sanitation target: the urban and rural challenge of the decade (Geneva: WHO and UNICEF, 2006).

3 Committee on Economic, Social and Cultural Rights, General Comment No. 4: The right to adequate housing, UN ESCOR, 1991, UN Doc. E/1992/23, para. 8 (b) and General Comment No. 14: The right to the highest attainable standard of health, UN ESCOR, 2000, para. 43 (c). See also paras. 11, 12, 15, 36 4 See The Human Right to Water and Sanitation: Legal basis, Practical Rationale and Definition, available at www.cohre.org/resources 5 Importantly, no reservations were made to the relevant provisions in either of the documents.

6 At: http://www.apwf.org. The full list of participating countries is available on the same site.

7 Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka.

8 The full text of the Delhi Declaration is available at: http://www.cohre.org/watsannews.

9 General Assembly Resolution 54/175 (2000) para. 12(a).

10 The Non-Aligned Movement acknowledged the right to water in September 2006: “The Heads of State or Government recalled what was agreed by the UN Committee on Economic, Social and Cultural Rights in November 2002, recognised the importance of water as a vital and finite natural resource, which has an economic, social and environmental function, and acknowledged the right to water for all” (14th Summit Conference of Heads of State or Government of the Non-Aligned Movement, Final Document, 16 September 2006, NAM 2006/doc.1/rev.3, para.

226).

11 Council of Europe, Recommendation of the Committee of Ministers to Member States on the European Charter on Water Resources, Recommendation 14 (2001) para. 5.

1

In 2002, the UN Committee on Economic, Social and Cultural Rights (CESCR), the body of independent experts responsible for interpreting and monitoring implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR) adopted General Comment No. 15 recognising and defining the right to water as a component of the right to an adequate standard of living contained in the ICESCR.12 The right to water and sanitation was also recognised in the 2006 Guidelines for the realization of the right to drinking water and sanitation adopted by the Sub-Commission on the Promotion and Protection of Human Rights.13 In addition, UN High Commissioner for Human Rights in 2007 stated that, “it is now time to consider access to safe drinking water and sanitation as a human right.”14 In terms of policies and resource allocation, the Millennium Project Task Force recommended that the international community explore ways to use General Comment No. 15 on the Right to Water to influence national policy.15 The UNDP Human Development Report 2006 was more emphatic and stated, “All governments should go beyond vague constitutional principles to enshrine the human right to water in enabling legislation.… Clear benchmarks should be set for progressing towards the target, with national and local governments and water providers held accountable for progress.”16 General Comment No. 15 and the Sub-Commission Guidelines set out a definition of the right to water and sanitation. This definition and its implication for MDG 7 C and A, is as follows: Sufficient water: Water supply for each person should be sufficient and continuous for personal and domestic uses, which normally include drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene.17 A key element in promoting water availability and allocation is prioritising allocation for essential domestic uses over other uses.

Clean water: Water for personal and domestic use should be free from hazardous substances that could endanger human health, and its colour, odour and taste should be acceptable to users.18 Accessible water and sanitation: Water and sanitation services and facilities should be accessible within, or in the immediate vicinity, of each household, educational institution and workplace, in a secure location, adequate and conducive to the protection of public health and the environment.19

12

United Nations Committee on Economic, Social and Cultural Rights, General Comment 15 (The Right to Water), UN Doc. E/C.12/2002/11.

13 United Nations Sub-Commission on the Promotion and Protection of Human Rights, Res. 2006/10, Promotion of the realization of the right to drinking water and sanitation, (2006) UN Doc. A/HRC/Sub.1/58/L11, adopting the Draft Guidelines for the realization of the right to drinking water and sanitation (2005), UN Doc. E/CN.4/Sub.2/2005/25.

The legal basis for this right was set out in an earlier Sub-Commission report, Final report of the Special Rapporteur on the relationship between the enjoyment of economic, social and cultural rights and the promotion of the realization of the right to drinking water supply and sanitation, 14 July 2004, E/CN.4/Sub.2/2004/20, paras. 40-44.

14 Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments, A/HRC/673 para. 66.

15 Task Force on Water and Sanitation, Health, dignity, and development: what will it take? UN Task Force Report (Millennium Development Library, June 2005), p.178.

16 UNDP, Beyond Scarcity: Power, poverty and the global water crisis, Human Development Report 2006 , p.8.

17 General Comment No. 15, para. 12(a).

18 General Comment No. 15, para. 12(b).

19 General Comment No. 15, paras. 12(c)(i), 29, Sub-Commission Guidelines s. 1.3(a)-(c), Sub-Commission Guidelines, s. 1.2.

2

Affordable water and sanitation: Water and sanitation should be secured without reducing any person’s capacity to acquire other essential goods and services, including food, housing, health services and education.20 Non-discrimination and inclusion of vulnerable and marginalised groups: There must be no distinction based on grounds such as race or colour which leads to unequal access to water and sanitation. Non-discrimination also includes proactive measures to ensure that the particular needs of vulnerable or marginalised groups are met and that equality between men and women is achieved.21 Access to information and participation: All people have the right to participate in decisionmaking processes that may affect their rights. All people should be given full and equal access to information concerning water, sanitation and the environment.22 Accountability: Persons or groups denied their right to water and sanitation should have access to effective judicial or other appropriate remedies.23 MDG Target 7 C takes into account physical accessibility of water and sanitation in terms of proximity. It also takes into account water quality in the sense that it tracks access to sources of water likely to be safe (such as piped water and protected wells). It does not address quality in situations in which water from those sources may be unsafe. MDG 7 C indirectly addresses physical security by treating shared public toilets as not meeting the MDG target, partly on the basis that such facilities are unsafe at night, in particular for women and children. With regard to availability of water, MDG 7C does not consider the continuity of water supply, meaning that it does not assess the impact of rationing nor does it address whether the amount of water used is sufficient. MDG 7A does, however, address the total proportion of water resources used, which is relevant for ensuring continuing availability of water.

In regard to basic sanitation, MDG 7 C only considers access to a safe toilet or latrine, but does not assess whether wastewater, sewage and/or excreta from latrine exhaustion is disposed of safely. This is problematic as such waste often pollutes drinking water sources and the living environment. MDG 7A would in principle require the safe disposal of such waste in order to ensure sustainable development. However, the indicators for this target do not capture this issue.

Similarly MDG 7 C does not track access to hygiene promotion and education, even though this is a necessary element, along with clean water and access to a toilet to protect against diseases such as diarrhoea.

MDG 7C also does not address affordability, even though the Millennium Declaration had aimed to reduce by half the proportion of people unable to reach or afford safe water.24 In regard to process, MDGs do not include measures to ensure non-discrimination, access to information, participation and accountability. The right to water and sanitation therefore supplements the MDGs by promoting developmental processes that target the most disadvantaged groups, rather than those to whom services can easily be provided, that aims to ensure equal participation of women in decision-making and that includes groups that are often denied access to water and sanitation, such as people in informal settlements or remote rural areas.

20

General Comment No. 15, para 12(c)(ii); Sub-Commission Guidelines, s. 1.3(d).

ICESCR, Art. 2 (2), General Comment No. 15, paras. 12 (c)(iii), (13), (16); Sub-Commission Guidelines, s. 3.

22 General Comment No. 15, para. 12 (4), 48 and 55; Sub-Commission Guidelines, s. 8.1.-8.3.

23 General Comment No. 15, para. 55; Sub-Commission Guidelines, s. 9.

24 Millennium Declaration, G.A. Res. 55/2, (2000), para. 19. For more detailed discussion, see V. Roaf, A. Khalfan and M. Langford, Monitoring the Right to Water: A Framework for Developing Indicators (Berlin: Heinrich Boell Foundation, Bread for the World and Centre on Housing Rights and Evictions, 2005).

21

3

The obligations of governments under the right to water and sanitation include several key elements that can help ensure the realisation of these rights and the MDG. The duty to respect this right means that governments must not interfere unjustly with a person's means of access to water and sanitation. The duty to protect requires governments to prevent private individuals or entities from infringing the rights of others, including by establishing sufficient regulation and monitoring for private companies and informal water and sanitation providers. The duty to fulfil requires that governments use all available resources to implement progressively the right to water. This includes developing a plan and strategy on expanding affordable access as well as protecting the quality of the water supply; actively searching for the available resources, nationally and locally; implementing the plan and monitoring its implementation over time; and providing systems of accountability. This also requires that states ensure everyone can access the minimum amount of water immediately unless they can demonstrate there are not sufficient resources available, which may require adapting MDG Target 7.C. Regional and local authorities must also have sufficient resources to match their water and sanitation responsibilities and be prohibited from violating the right. Governments also have international responsibilities under the ICESCR to take steps through international cooperation and technical assistance to support other states realise the right to water.

4

2. Executive Summary: Human rights gaps and challenges in MDG-based policies The selective review of national MDG reports in the Asian and African regions reveals three main points. First, that states are not limiting their efforts to extend access to water and sanitation solely to the MDG target. Significant attention is often given, for example, to affordability and to participatory approaches in rural areas. Encouragingly, MDG Goal 7C is not being seen by most of the countries examined as the limit of what is possible. Second, as might be expected, the lack of explicit attention to human rights in most countries is manifested in significant gaps in the water and sanitation framework. These are listed below. Third, even where the relevant frameworks reflect human rights principles, these principles in some cases have limited application due to failure to ensure the necessary finances and capacity, failure to translate these principles into specific entitlements and standards and potential retrogression where economic imperatives are permitted to over-ride entitlements to water and sanitation.

The main gaps and challenges are as follows: 1. Most national frameworks reviewed do not treat water and sanitation as rights under which people can hold governments and other actors accountable (with the exception of South Africa). Kenya and Ghana recognise the right to water and sanitation only in certain policies, thus providing political accountability in regard to the national government, but not legal accountability. In South Africa and Kenya, for example, local governments and service providers are not being compelled by the national government to ensure the realisation of rights contained in national policy. In Sri Lanka the right to water and sanitation is recognised at the policy level, but it is not clear that the human rights aspects of these policies have been implemented.

2. The national frameworks reviewed set medium-term targets for access to water and sanitation by 2015. However, only South Africa and Kenya have a target for universal access to water and sanitation. Sri Lanka has a target for universal access to water, but not for sanitation. The other countries do not have targets for universal access. Most targets for access to water and sanitation exist only at the national level, but not at the regional and local level. There are generally no targets for provision of water and sanitation to schools, including separate facilities for boys and girls.

3. In some of the countries examined, insufficient attention is given to access to sanitation, manifested by the lack of targets for hygiene promotion and education (necessary to ensure the full health gains from water and sanitation) and for facilities to ensure safe disposal of waste-water, sewage and excreta from latrine exhaustion away from human settlements.

4. Some of the national frameworks examined make provision for addressing the requirements of women. However, the needs of other vulnerable and marginalised groups, such as internally displaced persons and refugees are not addressed or given lower priority in the development of these plans. National frameworks generally ignore or give lower priority to the provision of access to informal settlements, and do not adopt the provision of secure tenure, which is closely linked to access to water and sanitation. In most cases, representatives of vulnerable and marginalised groups did not participate in the development of these frameworks.

5. Some national frameworks do not appear to provide for mobilisation of public resources to support extension of water and sanitation. Others do not allocate funding for programmes specifically targeting the poorest or vulnerable and marginalised groups.

5

6. Minimum targets for sufficiency of water have been set in South Africa, Kenya and Sri Lanka (in the rural water and sanitation policy) and for continuity to limit disruption of access caused by water rationing in South Africa. However, such targets have not been set in the other countries reviewed.

7. While almost all countries reviewed make provision for tariffs that are tiered with the objective of ensuring affordability for piped water, the relevant frameworks generally do not include clear standards to ascertain what costs are affordable nor do they provide for specific rules that apply to small-scale water and sanitation.

8. All the countries reviewed make some provision for participation of users in water and sanitation programmes. However, participation has generally been understood as meaning the involvement of user groups in delivery of water and sanitation (primarily in rural areas, and to a lesser extent in informal settlements in urban areas), thus reducing the State’s burden and making water provision more sustainable and accessible. Such programmes can help, but do not guarantee, the genuine participation of people in decision-making affecting their lives.

Some national frameworks more clearly call for participation in decision-making, without making provision for broad information dissemination that reaches the poor, clear standards for participation and for capacity building to ensure active and informed representation of vulnerable and marginalised groups. Participation in decision-making, where it exists, has mostly been limited to established NGOs, rather than active engagement of representatives of vulnerable and marginalised groups.

9. In most countries reviewed, the use of private sector provision or the establishment of commercially-oriented public service provision is a significant component of the water and sewerage access plan. In Kenya and South Africa, the regulatory structure follows rather than precedes these developments. Lack of effective regulation creates the possibility of retrogression in enjoyment of the right to water and sanitation, for example through increased prices, exclusion of participation of users in relevant decision-making and inadequate service.

10. Most countries lack effective, independent and easily accessible complaints mechanisms to address denials of, or interferences with, any person’s right to water and sanitation. South Africa’s judiciary is an exception, but South Africa lacks more economically accessible complaints mechanisms that are generally needed to supplement the judiciary.

11. In some countries reviewed, lack of clarity with regard to division of responsibility between relevant government actors has hampered the ability of users to hold government accountable.

6

3. Extent to which human rights and key human rights principles are reflected in MDG reports, MDG-based Poverty Reduction Strategies and sectoral policies 3.1. Kenya In Kenya, estimates of piped water coverage provided by the Ministry of Water and Irrigation in 2006 stand at 47% nationally. Sustainable access to safe water is estimated at 60% in the urban areas, with a decrease to 20% within the informal settlements and 40% in the rural areas. With respect to basic sanitation the Ministry of Water and Irrigation estimates a national coverage of 50%. In the urban area, sanitation coverage is estimated at 55% and dropping to 45% in the rural areas. In a 2002 government report it was estimated that 29% of urban households have access to water-borne sewerage, the remainder depending on on-site sanitation including septic tanks and pit- latrines. Rural households mainly rely on pit latrines.25 There are very significant disparities in access to safe water and sanitation between regions, with the lowest levels of coverage in areas of the country that are arid and semi-arid.

3.1.1. What is consistent with human rights and human rights principles?

Several sector documents recognise the right to water and sanitation. The National Water Resource Management Strategy (2006 to 2008) states that: “Water required to meet basic human needs and to maintain environmental sustainability will be guaranteed as a right”.26 The National Water Services Strategy (NWSS) indicates that access to water and to sanitation as a human right is the first and key principle of the NWSS. The National Environmental Sanitation and Hygiene Policy (NESHP) emphasises “that all Kenyans should enjoy a quality of life with dignity in a hygienic and sanitary environment as a basic human right”.27 In 2007, the Ministry of Water and Irrigation (MWI) published a document entitled the Water Sector Reform and the Human Right to Water in Kenya which describes the manner in which the right to water and sanitation is being implemented in the water sector. It states: The human right to water has helped the sector to focus better on the individual’s entitlement to access water and sanitation. The human rights approach offers additional tools to concentrate on the underserved and poor….As human rights are universal principles, the Ministry expects donors to align to these by harmonizing their actions and programmes to the sector policy and strategies. In this context, commitment towards the right to water supports the implementation of the Paris Declaration on Aid Effectiveness.28 The government has developed the National Poverty Eradication Plan as a long term plan for poverty eradication. The plan is being implemented through a three year rolling Poverty Reduction Strategy that brought together various stakeholders including Civil Society Organisations in its formulation and preparation. The government has taken steps to mainstream the MDGs into national planning and budgeting processes, and has directed that the MDGs be provided for in the specific budgets of ministries, departments and sectors and that adequate funds are allocated to them for implementation.

25 Kenya

National Assessment Report to the World Summit on Sustainable Development, p.22.

National Water Resource Management Strategy 2006 to 2008, Section 2, p.4.

27 National Environmental Sanitation and Hygiene Policy, Foreword, Executive Summary, 1.1. Vision.

28 Ministry of Water and Irrigation, Water Sector Reform and the Human Right to Water in Kenya (2007), p.5.

26

7

The MDG Status Report of 2005 states that for Kenya to achieve the MDGs in the water and sanitation sector, the Government will be required to meet an increase to 80% nationwide coverage of safe water supply (urban 96% and rural 66%) and 96% coverage of improved sanitation (urban 96% and rural 89%).29 The National Poverty Eradication Plan commits the government to ensuring all Kenyans have water by 2010 and safe sanitation by 2015. The National Water Services Strategy aims to reduce water collection time to an average of thirty minutes (return trip, including waiting time) in urban areas and to reduce the distance from the nearest water collection point to two kilometres in rural areas.

Water sector reforms that commenced with the passing of the Water Act, 2002 created an enabling legal and policy environment for the expansion and improvement of water and sanitation services. By 2008 all the proposed water sector institutions as envisaged under the reforms had been established and operationalised, achieving a central component of the reforms i.e. separation of roles and responsibilities in terms of policy, regulation and service provision.

Noticeable improvements in service delivery have been witnessed. However, pro-poor extension efforts were limited to the rural sector until about 2007, with the result that the informal settlements saw minimal improvements in water and sanitation coverage. The 2007 National Water Services Strategy recognised that sustainable access to safe water and basic sanitation was still declining in terms of quality and quantity within informal settlements.30 The water and sanitation sector has benefited to a certain extent from expenditure reforms aimed at addressing the MDGs.31 The Local Authority Transfer Fund (LATF) is a fund of which 20% is expected to be spent on core poverty programmes. 2.5% of all ordinary Government revenue is paid into the Constituency Development Fund (CDF). 75% of the CDF fund is distributed equally to all constituencies nationwide and the remaining 25% distributed on the basis of population and poverty index. The Water Services Trust Fund (WSTF) is a mechanism intended to extend access to the poor. Its’ programmes are directed towards the poorest localities within each province. Originally working only in the rural areas of the country, as of 2007, the WSTF was beginning to address urban informal settlements.

In relation to attention to vulnerable and marginalised groups, the National Water Services Strategy indicates that the Water Services Regulatory Board will require the explicit provision within Service Provision Agreements for service providers for planned extension of services into poor areas such as informal settlements.

A Pro-Poor Implementation Plan for Water Supply and Sanitation (PPIP - WSS) developed in 2007, aimed at up-scaling and fast-tracking actions for water and sanitation coverage by concentrating on low cost technology and settlements of the urban poor. The Ministry of Health’s National Environmental Sanitation and Hygiene Policy (2006) provides similar proposals on the provision of improved sanitation technology that are cost effective, affordable and appropriate for the needs of children, women and men.32 In regard to affordability, the Water Services Regulatory Board Tariff Guidelines and Model (2007), whose goal is to establish tariffs that balance commercial, social and ecological interests and affordability has remained central in discussions on the water sector reforms. The Tariff Guidelines and Model provides for “a “pro-poor” policy that includes the provision of a lifeline tariff for poor households. This can be done by a “social block tariff”, charging a lower

29

MDG Status Report, p. 26 Ministry of Water and Irrigation, The National Water Services Strategy 2007-2015 (2007) p.1 31 Government statistics indicate that over 60% of the CDF fund has been spent on education, water and health.

32 p.2.

30

8

percentage of the average tariff (e.g. 50-70%) for the consumption of up to six cubic metres.33 The guidelines provide specific guidance on kiosk systems used by the poor. They provide that the price per cubic metre of water should not be higher than the lifeline tariff. The relevant service provider utility (providing water to the kiosk) is required to control the tariffs at the kiosk to ensure that consumers benefit from the lifeline tariff.

With reference to water availability, the National Water Services Strategy addresses the issue of rationing by requiring that the service providers managing piped systems provide water at least 12 hours per day on average.34 This is particularly significant for the poor, in particular kiosk users, as the price of water is increased significantly in times of water shortages.

On water quality, the Environmental Management and Coordination Act of 1999 sets standards for a clean and healthy environment with corresponding obligations to protect and manage the environment.35 The act establishes the National Environment Council (NEC), National Environment Management Authority (NEMA), provincial and district environment committees, and the Public Complaints Committee. The Pro-Poor Implementation Plan for Water Supply and Sanitation (PPIP - WSS) 2007 creates an obligation on the part of service providers to provide information to consumers on the results of water quality tests.

In regard to accountability, since 2004, the Ministry of Water and Irrigation and sector institutions have been responding to corruption in the water sector by carrying out institutional capacity building trainings. Since 2007, improved reporting mechanisms and improved complaint mechanisms have also helped in the fight against corruption.

3.1.2. What is conflicting with human rights and human rights principles?

The National Water Services Strategy estimates that 60% of water supply is unaccounted for; that is, lost through leakage and illegal connections. The Water Service Regulatory Board, Water Service Boards and Water Service Providers have been responsible for decreasing nationwide unaccounted for water from 2008. This responsibility could have the positive effect of increasing water supply and improve water quality, especially within informal settlements. On the negative side, it may lead to massive disconnections of illegal connections by vendors who provide water to residents of informal settlements. However, in the absence of policy guidelines regulating disconnections (for example, which would aim to ensure a legal connection to serve residents relying on an illegal connection), measures to decrease unaccounted for water could lead to a retrogression in accessing water. The tariff guidelines currently permit disconnection of water supply due to non payment, even in situations of genuine inability to pay for essential levels of water.

In addition, the development of commercialised public service providers, who are expected to generate a significant portion of operations and maintenance costs from user fees, does not create an incentive for such providers to extend access to the poor. The regulatory structures to ensure an incentive for such provision were established after the formation of service providers, rather than before. The financial sustainability of water sector institutions also remains a key challenge.

As of 2008, the Athi Water Services Board based in Nairobi was the only institution that was self sustaining. An estimated 75% all Water Service Providers were unable to meet their operations and maintenance cost. With respect to water resources management, the amount of revenue collected by the Water Resources Management Authority from abstraction fees and permits remained insufficient to ensure the Authority’s financial sustainability.

33

Ibid s. 5.5.

Ibid p. 35.

35 s. 37 34

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3.1.3 What human rights principles are missing?36 The current Constitution of Kenya, the Water Act and the Public Health Act do not include explicit provisions with regard to economic, social and cultural rights including recognition of the right to water and sanitation. These rights were contained in all versions of the draft Constitution that was on the political agenda in 2005. Water sector reforms may not succeed in the absence of a sound legal framework.

With regard to physical accessibility, the National Water Services Strategy aims to reduce the distance from the nearest water collection point to two kilometres in rural areas. However, WHO guidelines indicate that a water collection point needs to be within one kilometre (or 30 minutes collection time) in order to be able to carry 20 litres of water, the minimum required to meet personal and domestic needs.

The water sector reforms have not targeted institutions such as schools for priority water supply and for construction of sanitation facilities– including facilities segregated by sex.37 While securing water and sanitation in schools is not the exclusive responsibility of the Ministry of Water and Irrigation, sector institutions are not taking steps to sensitise educational institutions about the benefits of water and sanitation and by prioritising educational institutions in their extension plans.

The national framework does not include steps to secure tenure for people living in informal settlements. This situation has a direct impact on water and sanitation as it reduces the incentive for entrepreneurs to invest in small-scale facilities to serve these settlements.

The development of tariff guidelines, while making important provision for affordability for those consuming small amounts of water, does not make any provision for the poorest of the poor who are unable to afford basic minimum essential levels of water (for personal and domestic use).

Kenya has adopted provisions requiring public participation in water and sanitation service provision. However, the groups who stand the most to benefit from the pro-poor reforms have little or no information on substantive developments in the sector and cannot therefore meaningfully participate. There is not yet an information dissemination strategy that would ensure information reaches all sectors of society. There are no standards or principles for participation to provide clarity around what can be defined as meaningful participation and information exchange. There is no explicit requirement on government and sector institutions to ensure that communities are involved before decisions are made rather than after.

Participatory processes lack concrete measurable outputs. Stakeholder forums generally fail to consider the quality of community representation. It is necessary to take into account aspects such as levels of literacy and different language groups, physical or cultural restrictions to accessing information and actively participating in decision-making.

36

For more detailed information, see M. Katui Katua, A. Khalfan, M. Langford and M. LĂźke, Kenyan-German development cooperation in the water sector: Assessment from a human rights perspective (GTZ, Eschborn, 2007).and COHRE, Case Studies on Efforts to Implement the Right to Water and Sanitation in Urban Areas: Brazil, Kenya, Sri Lanka and South Africa: Working Paper (March 2008).

37 The Ministry of Health, National Environmental Sanitation and Hygiene Policy (2006) singles out the need to provide hygienic toilets specifically in schools but fails to prioritise implementation.

10

Measures to ensure transparency and accountability in the water sector, including through complaints mechanisms are not accessible to the underserved and those not connected to formal networks. Most of the urban poor rely on private small-scale vendors, many of whom obtain water through illegal connections. Therefore, they have no remedy in situations of corruption that reduce their access to water. In addition, it appears that insufficient provision is made to ensure adequate governance of the Local Authority Transfer Fund and Constituency Development Fund.

While the Water Act and the National Water Services Strategy remain the principal national legislation and policy respectively in this area, there are an estimated 26 other national statutes and policies that touch on water and sanitation.38 Conflicting provisions under the Local Governments Act and the Water Act with respect to the provision of water services remains unresolved. A number of government ministries have complementary mandates to the Ministry of Water and Irrigation. The Ministry of Water and Irrigation and the Ministry of Health both have responsibilities with regard to water quality and hygiene, and no consensus has been reached on their respective roles and responsibilities. The National Water Services Strategy recognises the need to improve overall co-ordination between all relevant ministries and departments to ensure that there is no overlap of efforts or contradictory policies. While co-ordination is important, it is necessary to ensure that people know which institution is to be held responsible for nonprovision of the right. Thus, a clearer division of responsibilities is required.

38

National Water Resources Management Strategy, p.2.

11

3.2. South Africa In its 2005 MDG Report, South Africa states that the proportion of households having access to clean water increased from 60% in 1995 to 85.5% in 2003. Access to sanitation increased from 49% of households to 63% within the same time.39 The MDG Report notes that access to improved sanitation has “lagged significantly behind access to an improved water source” but that the pace of delivery has picked up in the past two years.40 The report also points out that the new policies and legislation that have been developed since the transition have been with full public participation and consultation, for the purpose of securing sustainable and equitable access to resources.41 The 2007 Midterm MDG Report claims even greater progress. With regards to the provision of basic water and sanitation services, access increased from 59% of the population in 1994 to 94% in March 2007.42 The water and sanitation sector has benefited from a series of reforms in post-apartheid South Africa. These reforms were intended to redress the disparities perpetuated by previous racial segregation policies resulting in severe inequalities between black and white communities in terms of access to water and sanitation services and other facilities. According to the Department of Water Affairs and Forestry, out of a population of over 49.5 million people there are currently 2.4 million people with no access to a basic level of water supply and a further 3.3 million people have access to a water supply which does not meet the basic service levels.43 South Africa’s inequalities resulting from apartheid policies continue to have an impact in municipal water services.

3.2.1. What is consistent with human rights and human rights principles?

The 2007 MDG Report indicates that the government has made a commitment to eradicate the sanitation bucket system in formal areas by December 2007 and that the target date for ensuring universal access to water supply is 2008 and for sanitation 2010.44 A progressive law and policy framework has developed within the water and sanitation sector, with an explicit constitutional recognition of the right to water and the right to a clean environment. The bill of rights applies to all law and binds all organs of state45 as well as natural and juristic persons.46 This allows for a clear remedy for those whose right to water, a clean environment (and implicitly sanitation) is infringed.47 The Water Services Act 1997 recognises the right of access to basic water supply and basic sanitation and the White Paper on Basic Household Sanitation 2001 focuses on provision of a level of basic household sanitation to rural areas and informal settlements. The Free Basic Water Implementation Strategy 2002 sets a target to provide 6000 litres of water free per household per month.

South Africa has adopted the Growth, Employment and Redistribution Strategy (GEAR)48 an integrated strategy with the objective of rebuilding and restructuring the economy. One of its 39

South Africa Millennium Development Goals Country Report, 2005, p. 7.

Ibid, p. 51.

41 Ibid, p. 45.

42 South Africa Millennium Development Goals Mid Term Country Report, 2007, p. 44.

43 Department of Water Affairs and Forestry, Annual Report 2007-2008, pg. 54.

44 South Africa Millennium Development Goals Mid Term Country Report, 2007, pg. 44.

45 Ibid, section 8(1).

46 Ibid, section 8(2).

47 Ibid, section (2).

48 GEAR follows on the Reconstruction and Development Programme 1994 (RDP) which is South Africa’s first democratic development policy document. RDP included in the short term, provision of 20-30 litres of clean safe water per person per day and 50-60 litres in the medium term. It also established a lifeline tariff to ensure that all South Africans are able to afford water services sufficient for health and hygiene.

40

12

main targets is to accelerate public sector investment and increase infrastructural development and service delivery.49 It makes improving water and sanitation a priority for rural communities and states that some 500 projects with a price tag of R 1.5 billion have already been committed.50 The strategy acknowledges that ‘rapid progress with the supply of potable water to the 12 million people without adequate access will be a major contribution to poverty relief’.51 In addition, according to UNDP, South Africa was one of the few countries that spent more on water and sanitation than on the military.52 The Accelerated and Shared Growth Initiative-South Africa (ASGISA) is one of the responses to the challenge of halving poverty and unemployment by 2014. Identified areas of government expenditure at all levels include bulk water infrastructure and water supply networks.53 The initiative focuses on the concerns of women and youths as being relevant to achieving its goal. With regard to women, the focal point will be expanding and accelerating access to economic opportunities and improving their access to basic services.54 South Africa is unique in that its legislative and policy framework adopted between 1996 and 2002, based on the right to water and sanitation is highly conducive to the achievement of the MDGs. This is briefly summarized here.55 In regard to water availability, the National Water Act establishes a basic human needs reserve which ‘provides for the essential needs of individuals served by the water resource in question and includes water for drinking, for food preparation and for personal hygiene’ and second of an ecological reserve, which ‘relates to the water required to protect the aquatic ecosystems of the water resource.’56 The Water Services Act states that everyone has a right of access to basic water supply and basic sanitation, that every water services institution must take reasonable measures to realise these rights and that every water services authority must, in its water services development plan, provide for measures to realise these rights. 57 The Act’s definition of basic sanitation is not limited to access to a toilet, but also comprises the safe, hygienic and adequate collection, removal, disposal or purification of human excreta, domestic waste water and sewage from households, including informal households.58 Regulations issued in 2001 set out the prescribed minimum standards: the provision of appropriate education in respect of effective water use and a minimum quantity of potable water of 25 litres per person per day or 6000 litres per household per month. Such water should be provided at a minimum flow rate of not less than 10 litres per minute, within 200 metres of a household; and with an effectiveness such that no consumer is without a supply for more than seven full days in any year.59 The Water Services Act provides that if the water services provided by water services institutions fail to meet the needs of all their customers, then they must give preference to the provision of basic water supply and basic sanitation. In cases of emergency basic water supply and sanitation services must be provided, even at the cost of the water services authority.60 The Act requires a water services authority to take reasonable steps to bring its draft water services development plan to the notice of its consumers and potential consumers and to consider all comments by the public.61 In addition, the Department of Water Affairs and Forestry 49

Growth, Employment and Redistribution Strategy, pg. 2.

Ibid, pg. 16.

51 Ibid.

52 Bathandwa Mbola, ‘South Africa: UNICEF Hails International Sanitation Year’ 3 January 2008 available at http://www.allAfrica.com 53 Ibid, pg. 7.

54 Ibid, pg.12.

55 For more detailed information, see COHRE, Case Studies on Efforts to Implement the Right to Water and Sanitation in Urban Areas: Brazil, Kenya, Sri Lanka and South Africa: Working Paper (March 2008).

56 Chapter 3, part 3 NWA. 57 Water Services Act, (Act 108 of 1997), s. 3.

58 Ibid, s. 1 (ii).

59 Regulations relating to compulsory national standards and measures to conserve water, s. 3, 60 Ibid. Sections 5, 11(5).

61 Ibid. ss. 14, 15 (1-2).

50

13

has a number of tools, detailed in their Generic Public Participation Guidelines,62 for water service authorities to use to ensure adequate participation in planning of water and sanitation services.

3.2.2. What is conflicting with human rights and human rights principles?

Subjecting access to free basic water and other poverty alleviating measures to ‘means-testing’ has ensured that many of the poorest households are excluded from such benefits. In the city of Johannesburg for example, indigency policy benefits (which include 6000 litres of free basic water and free refuse and sanitation) are only available to property owning account holders.63 This constitutes discrimination on the basis of property. In addition, those account holders who qualify for the package must accept the mandatory installation of prepayment water meters, which automatically shuts off after dispensing the free amount of water unless credit is available.

While, affordability of water and sanitation has been enhanced by the free basic water policy, many water services providers use non-progressive tariff structures. These tariffs provide the compulsory 6000 litres of free basic water, followed by a steep, convex curve, which makes the next consumption block unaffordable to many households, particularly those with shared connections or whose members suffer from HIV/AIDS, and inevitably lead to higher rates of water disconnections.64 The practice of consolidating accounts by municipalities, permitted by the Municipal Systems Act, hinders accessibility. Municipalities may appropriate payment for water services to offset arrears for property rates, leaving water bills unpaid and consumers susceptible to disconnection.65 3.2.3. What human rights principles are missing?

In regard to water availability, the free minimum quantity of potable water set at 6000 litres per household per month is considered insufficient to meet basic human needs particularly for the urban poor relying on water-borne sanitation and large households. As a result, the High Court of South Africa declared that this quantity must remain a floor and not a ceiling, and this regard required the provision of 50 litres per person per day for the residents of Phiri, a township in Johannesburg.66 With regard to physical accessibility, the absence of a corresponding national free basic sanitation policy to accompany the free basic water policy negatively affects access to sanitation facilities and services. The 2001 Government White Paper on basic household sanitation aimed to develop such a policy. However, this is still in the process of being approved.67 With regard to participation and access to information, South Africa’s framework does not make specific provision for the human and financial capacity requirements necessary to ensure that national or local government is able to ensure genuine participation by users. Participation is constrained by time pressures on government to achieve its own targets. DWAF have recognised problems in this regard and have included a section on “strengthening consumer voice” in their Draft Strategy for Water Services Regulation.68 This problem is underscored by the recent Mazibuko judgment 62

DWAF Generic Public Participation Guidelines, September 2001, available at www.dwaf.gov.za Alex Wafer, Jackie Dugard, Muzi Ngwenya & Shereza Sibanda, “A Tale of Six Buildings: The Lived Reality of Poor People’s Access to Basic Services in Johannesburg Inner City” CALS Research Report, April 2008, pg 3.

64 P. Bond & J. Dugard, ‘Water, Human Rights and Social Conflict: South African Experiences’, 2008(1) Law, Social Justice & Global Development Journal (LGD), pg.9.

65 Section 102, Systems Act 2000 .

66 Lindiwe Mazibuko & Others v The City of Johannesburg & Others, Case no. 06/13865, High Court of South Africa (Witswatersrand Local Division). This judgement is under appeal.

67 Department of Water Affairs and Forestry, Annual Report 2005-2006, p. 44.

68 Draft Strategy for Water Services Regulation, Final Draft, January 2008.

63

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which found that no proper consultations took place in Phiri prior to the installation of prepayment water devices.69 Failure to provide for adequate funds and capacity is also responsible for difficulties in meeting the targets for universal access to basic water supply by 2008 and universal access to a basic minimum level of sanitation by March 2010. According to DWAF: “the inadequacy of the funds made available to water services authorities to eradicate the backlog, and constraints experienced by water services authorities and providers (such as capacity constraints) result in the available funds not being fully or effectively spent.�70 In relation to non-discrimination and attention to vulnerable and marginalized groups, informal settlements are given reduced priority, as shown by the commitment to eliminate the bucket system of sanitation in formal areas by 2007 and the remainder by 2010. There has been a practice to not improve informal settlements in some urban areas but rather to relegate the poor to housing on the periphery of the urban area. In a recent report, the Centre for Applied Legal Studies highlighted the plight of poor inner city households of Johannesburg and their inability to access basic services because the City’s service delivery paradigm is based on property ownership.71

69

Lindiwe Mazibuko & Others v The City of Johannesburg & Others, Case no. 06/13865, High Court of South Africa (Witswatersrand Local Division).

70 Draft Strategy for Water Services Regulation, Final Draft, January 2008.

71 Wafer, et al, (See note 59 above) p. 18.

15

3.3. Ghana The government of Ghana has declared that it is committed to the principles of the MDGs and that it recognizes that improvement in the provision of water supply and sanitation services is a core feature in achieving poverty reduction and sustainable development.72 Presently, urban water supply coverage is estimated at 55%, while rural and small town coverage is about 51.6%.73 An estimated 40% of the urban population has access to some form of acceptable household sanitation facility and rural sanitation coverage is estimated at 11%.74 Several strategic documents in or pertaining to the water and sanitation sector have made references to the MDGs. These include the National Water Policy 2007 (NWP), the Growth and Poverty Reduction Strategy 2006-2009 (GPRS II) and the draft Revised Environmental Sanitation Policy (RESP). Ghana’s development agenda is driven by the GPRS II which is itself informed by its commitments to the MDGs, NEPAD and the constitution.75 Ghana’s MDG report states that access to safe water rose from 49%-74% between 1990-1998, but indicates that there are wide disparities among regions and between urban and rural areas.76 It identifies a number of challenges, which includes lack of funding, inability of communities to contribute to capital costs and poor quality of ground water.77 The MDG Report does not provide information on sanitation.

3.3.1. What is consistent with human rights and human rights principles?

The NWP was the culmination of a string of reforms in the water sector aimed at enhancing the efficiency of the production and utilisation of water and re-aligning the key institutions within the sector. It explicitly recognises as a guiding principle the “principle of fundamental right of all people without discrimination to safe and adequate water to meet basic human needs.”78 On water quality and hygiene, the NWP sets out the government’s determination to halt the falling trend in water supply quality caused by agricultural, industrial and mining activities.79 The government sets the following key goals: (i) improving access to safe water supply and sanitation to reduce the proportion of the population without access to basic water supply and sanitation by 50% by 2015 and 75% by 2025 (ii) improving equity and gender sensitivity and promoting propoor water governance and water policies.80 With respect to physical accessibility, the NWP ‘aims to facilitate improving access to potable water’ by promoting equity in access for the peri-urban and urban poor and providing basic water and sanitation services to rural communities. Such communities will have to contribute towards the capital costs and pay for normal operation, repair and replacement costs.81 On the issue of affordability of water, the NWP advocates meeting the social needs of water as a priority and recognises the basic right to a threshold level of services (‘some for all’) especially for that section of the population who can demonstrably not afford the full cost of supplies. Meeting 72

National Water Policy, 2007, p.7.

Ibid, p.5.

74 In A snapshot of drinking water and sanitation in Africa: A regional perspective based on new data from the WHO/UNICEF Joint Monitoring Programme for water supply and sanitation, 2008, the JMP estimates national sanitation coverage at less than 26%. Doubts have been expressed about the JMP’s estimate especially as the Ghana Statistical Service puts sanitation coverage in 2006 at 60%.

75 Ibid, p. 5.

76 Ghana: Millennium Development Goals Report 2003, p. 26.

77 Ibid.

78 NWP, p. 11.

79 Ibid, p. 27.

80 Ibid.

81 Ibid p. 38.

73

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the social needs for water as a priority, while recognising the economic value of water and the goods and services it provides is an underlying principle in financing water resources management in Ghana.82 The NWP encourages the adoption of a tiered tariff structure system for water supply.83 The policy also aims to ensure participatory decision-making at the lowest appropriate level of society on water related issues and calls for the acceleration of women’s representation at all levels and in all spheres of water related management. Importantly, the NWP guarantees access to water without discrimination and provides for the management of water resources in a manner that safeguards access by the poor and vulnerable.84 The central role of GPRS II is to accelerate the growth of the economy so that Ghana can achieve middle income status within a measurable planning period. GPRS II includes, as an essential component, the right of everyone to basic social services such as health care, safe drinking water and sanitation as well as protect the rights of the vulnerable members of society.85 Improving access to potable water and sanitation is seen as critical to achieving favourable health outcomes, which will in turn facilitate economic growth and sustained poverty reduction.86 Adequate sewerage and sanitation facilities are viewed as important for environmental cleanliness and prevention of many infectious diseases like diarrhoea and dysentery.87 GPRS II contains several policy interventions aimed at accelerating the provision of safe water in urban and rural areas. These include provision of new investments in guinea worm endemic rural and urban areas and lifeline tariffs for poor urban households. It also contains strategies to accelerate the provision of adequate sanitation and improve environmental sanitation.

The objectives of the National Environmental Sanitation Policy (NESP) include formally establishing environmental sanitation as a sub-sector within the national development programmes, developing strong legislative and regulatory framework and capacity for supervising environmental sanitation activities and enforcing standards and adopting the cost recovery principle in the planning and management of environmental sanitation service. Though not explicit in its reference to the MDGs, the NESP aims to provide 90% of the population with access to an acceptable domestic toilet and the remaining 10% access to hygienic public toilets by 2020, phase out pan latrines by 2010, regularly collect and dispose of solid wastes generated in urban areas in adequately controlled landfills and strictly enforce the observance of environmental standards and sanitary regulations.

The draft RESP, which still awaits cabinet approval, is an updated version of NESP. It seeks to refocus the priorities of the sector, re-examine and deal more effectively with issues that have led to the persisting underlying causes of poor environmental sanitation. Its overall goal is to develop a clear and nationally accepted vision of environmental sanitation as an essential social service and a major determinant for improving health and living standards. Even though it does not expressly recognise a human right to sanitation, it contains important elements of the right to sanitation and is anchored among others, on GPRS II, a policy which explicitly recognises the right of everyone to basic social services such as sanitation.

82

Ibid, p. 19.

Ibid, p. 20.

84 NWP, p. 16.

85 GPRS II, p. 41.

86 GPRS II, p. 51.

87 Ibid.

83

17

3.3.2. What is conflicting with human rights and human rights principles?

GPRS II aims to accelerate the provision of safe water by introducing the private sector into management and operation of the water supply systems. Ghana’s MDG Report proposes to formulate a policy on private sector participation in the operation and maintenance of water service delivery and establishing regional offices of its utility regulator to enable it respond more effectively to community requests.88 NESP assigns delivery of a major proportion of environmental sanitation services to the private sector. These initiatives may come into conflict with human rights principles if there are inadequate regulations to safeguard the various components of the right to water and sanitation, inadequate regulatory capacity and lack of user participation in the design of contracts between the government and private provider.

3.3.3. What human rights principles are missing?

While GPRS II explicitly recognises a right to basic social services such as safe drinking water and sanitation, the NWP fails to match the GPRS II in its explicit authoritative recognition of a right to water, but recognises it only as a guiding principle. The draft RESP also stops short of recognising a right to sanitation. This lack of explicit authoritative recognition does not clearly capture the government’s obligation to respect, protect and fulfil the right to water and sanitation.

This is an important concern as the Ghanaian Constitution does not as yet specifically recognise this right. The ability of individuals and groups to hold government or water sector institutions accountable in a court of law or other quasi-judicial forum is severely curtailed.

With regard to physical accessibility, Ghana does not have a target for universal access to water and sanitation. In addition, the NWP mentions ‘a threshold level of services’ as well as ‘basic water and sanitation services’ but does not define these. Also, the framework is silent on the issue of physical security during access to water and sanitation facilities and services.

Further, there is no specific time-bound schedule to achieve equity in access to water supply for peri-urban and urban poor. Additionally, the NWP does not make specific provision for access to water and sanitation facilities in schools and other educational institutions.

With regards to sanitation, the NESP does not include significant commitments to hygiene education, a crucial component of sanitation provision and protection of water services. This is however remedied by the draft RESP which places premium on effective hygiene education and communication. Although it recognises severe imbalances in sanitation provision in rural and urban areas, NESP fails to outline a process to effectively rectify such imbalances.

In relation to affordability, one of the missing ingredients is a clear commitment on government to provide financial assistance to ensure access to water and sanitation facilities and services to those who are unable to realize the right themselves. Moreover policies relating to disconnections of water supply for non-payment do not contain an exemption for those who are genuinely unable to pay. There is no clear cut national government commitment to allocating public resources for the realization of the right to water and sanitation especially for the vulnerable and marginalised. While the draft RESP advocates for economically appropriate levels of service it unfortunately leaves the responsibility of funding such service to metropolitan, municipal and district assemblies, who are expected to generate funding for such purpose. This luke-warm attitude partly manifested in the fact that only 3.5% of the funds for the sector come from the government, with the balance provided by international donors.89 The government is obliged to

88 89

See note 76 above.

Country information: Ghana, accessible at http://www.wateraid.org.

18

use its maximum available resources to realise the right, while donors should maintain or increase their support, in conformity with their obligation to provide international assistance.

Further, Ghana’s framework does not address the provision of remedies to persons and groups who have been denied their right to water and sanitation. Given the lack of formal legal recognition of the right, users do not have access to effective judicial or other appropriate remedies at the national level.

19

3.4. Sri Lanka A number of documents of national importance make both explicit and implicit reference to the recognition of water and sanitation as a basic human right, and a national priority. The Poverty Reduction Strategy (PRS) of 200290 reiterates that water and sanitation is seen by Government as the single, highest social service priority to poor households’, and highlights the significance of water and sanitation for the eradication of poverty and poverty related ills. It is noted in this report, that while Sri Lanka’s health and demographic indicators are more akin to those of developed countries than developing countries, the MDG targets for water and sanitation will nevertheless have a marked impact on the population living in extreme conditions of poverty.

Sri Lanka has in the recent past formulated national policies pertaining to the water and sanitation sectors. The foremost among them are the national policy for rural water supply and sanitation sector,91 national policy on water supply and sanitation,92 and separate policies for drinking water93 and sanitation94. The latter two policies (formulated following the MDG report of 2005) articulate a national commitment to the MDGs in the attainment of sustainable economic and social development. An amalgamated version of these two policies (for drinking water and sanitation) was published in the newspapers for public comment on December 29, 2008. This document, headed ‘policy objective’ articulates that ‘access to safe drinking water and sanitation is an inalienable right of the people’, and that it is the ‘fundamental responsibility of the Government of Sri Lanka to take all necessary actions to provide access to improved sanitation for all persons’. Among the key principles of the policy is that – ‘access to sanitation services shall be considered as a basic human need and a right which enables social and economic enhancement to each and every citizen and the country as a whole’.

The recent 2006 ‘Mahinda Chinthana’ developmental plan95 makes specific reference to the development of water and sanitation as having a ‘close connection’ with reaching the MDGs targets in view that five of the goals in particular are either directly or indirectly reliant on the achievement of better water supply and sanitation.96 According to a census taken in 2001, 82% of the population has access to safe drinking water, with 96% coverage in urban areas, 81% in rural and 61% in the plantation estate sector. The figures for access to sanitation are 78% in urban areas, 67% in rural areas and 43% in the plantation estate sector. There has been a marked improvement in access to sanitation over the last three decades with coverage increasing from 21% to 67% nationally. According to 2004 statistics from UNICEF, 98% of the urban population, compared to 79% in rural areas, used both improved water sources and improved sanitation facilities.97 However, according to the National Water Supply and Drainage Board’s (NWSDB) criteria for ‘safe water’, coverage for water supply is only 77% nationally, lower than the census figure of 82% given above.98 90

Government of Sri Lanka (2002), Regaining Sri Lanka: Vision and Strategy for Accelerated Development..

Ministry of Urban Development, Construction and Public Utilities, Rural Water Supply and Sanitation Division, 2001, National Policy for Rural Water Supply and Sanitation Sector.

92 Ministry of Housing and Plantation Infrastructure, (2002), National Policy on Water Supply and Sanitation.

93 Ministry of Urban Development and Water Supply (2007), National Policy on Drinking Water, National Water Supply and Drainage Board.

94 Ministry of Urban Development and Water Supply (2007), National Policy on Sanitation, National Water Supply and Drainage Board.

95 Department of National Planning (2006), Mahinda Chinthana: Vision for a new Sri Lanka – A Ten Year Horizon Development Framework 2006 – 2016 (Discussion Paper), Ministry of Finance and Planning.

96 Mahinda Chinthana: Vision for a new Sri Lanka – A Ten Year Horizon Development Framework 2006 – 2016 (Discussion Paper).

97 Statistics Unicef: http://www.unicef.org/infobycountry/sri_lanka_statistics.html.

98 National Water Supply and Drainage Board, Corporate Plan 2007 – 2011, section 1,4.

91

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3.4.1. What is consistent with human rights and human rights principles?

National targets for the water and sanitation sectors established by the relevant national institutions for increasing coverage of drinking water and sanitation are in keeping with the targets of the MDGs. The Millennium Goals Country Report of 200599 sets out the targets established by the NWSDB, which aims to reach 85% coverage of persons with access to ‘safe water’ by 2015 and 100% coverage by 2025. The national target for sanitation is 85% by 2015.

The Mahinda Chinthana developmental plan aims to increase ‘overall access to improved water supply facilities with sufficient water supply and service levels with the quality of water at national standards, to 90% of the population by the year 2016, with 100% coverage of urban areas. The target for overall access to sufficient domestic water in rural areas by the year 2016 is 90%, and 85% for improved sanitation.100 The overall coverage of ‘safe, adequate and improved sanitation facilities and service levels’ is to reach 88% of the population by 2016.101 It is estimated that by 2011 coverage of piped water will increase to 40% and access to safe water will reach 82% (which includes water supply by dug wells, tube wells and rain water harvesting). These targets are over and above those set out by the MDGs. These targets reflect a national recognition and commitment to ensuring universal access to drinking water and sanitation as a priority, based on the recognition of water and sanitation as being inherently fundamental to the well – being and life of the population.

The 2001 policy for rural water and sanitation specifies minimum requirements needed to ensure ‘health and levels of services’. These include: a minimum quantity of water per person; a maximum haulage distance; adequacy of the source of water; equitable considerations that ensure water security to all members of a community; quality of the water supplied, and flexibility of basic facilities for upgrading.102 The policies highlighted above make provision for vulnerable and marginalized groups. The policy on sanitation for instance, specifies the prioritisation and allocation of resources based on ‘socio – economic criteria to ensure the equitable distribution of investment, where a demand driven approach will be adopted to identify need for investment, and whereby poor and marginalized communities will be given priority’.103 The PRS makes a specific effort to identify and target regions (and communities) who are particularly poor. It identifies poverty to be most rampant in rural areas where 90% of the population of Sri Lanka reside. It sets out broad based poverty reduction initiatives, as well as detailed policy and programmatic interventions designed to connect the poor to economic growth. It encourages a profiling of the poor to take into account the many dimensions of poverty that fall outside economic considerations and include considerations of human rights. It aims to include perceptions of poverty among poor communities in addition to a technical assessment of poverty.

The ‘Mahinda Chinthana’ developmental framework identifies regional variations in access to water and sanitation facilities as one of the issues and challenges in these sectors, especially in remote rural areas, the estate sector and the Nuwera Eliya District, in addition to underserved settlements in urban areas. The expected targets outlined by this report for the estate sector are – 80% access to improved water supply facilities with sufficient water supply, and 75% overall access to safe and adequate improved sanitation facilities. In addition this report recognises that the supply of 99

National Council of Economic Development (NCED) and the United Nations Development Organisation (UNDP), 2005, Millennium Development Goals – Country Report (Sri Lanka).

100 Mahinda Chinthana: Vision for a new Sri Lanka, p. 84.

101 Ibid , p. 83 – 84 102 National Policy for Rural Water Supply and Sanitation Sector, s. 3.2.

103 National Policy on Sanitation, s. 5.2.

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safe drinking water and sanitation for persons affected by natural and man-made disaster is a key challenge for the water and sanitation sector. The scope of the National Policy on Drinking Water extends to ‘new sectors’, such as ‘conflict affected areas, internally displaced persons, in addition to the estate sector.104 There are significant policy measures to ensure a participatory approach to the provision of water and sanitation. This is especially the case with rural water supply and sanitation, where the prevalent policy is to include the participation of users, planners and policy makers at all levels of sector activities.105 Community Based Organisations (CBOs) contribute to the capital investment of water and sanitation facilities and take ownership of the facilities and assets and take full responsibility for sustaining and maintaining them.106 Participatory approaches to water and sanitation delivery is a secondary consideration in urban areas where the large number of connections and users makes community involvement less feasible. However, community participation in low income settlements in urban areas has been encouraged since the 1970s by establishing CBOs in these settlements. The National Policy for Water Supply and Sanitation 2002 aims to ‘support community participation while ensuring adequate provision for low – income urban and rural communities’. This statement recognises that participation of users at the community level may exclude low-income urban and rural communities who may require special assistance to ensure access to water and sanitation are concerned.

The involvement of CBOs and demand management in rural water supply schemes has contributed to a greater availability of water. The rural water supply and sanitation policy articulates that water is a basic human need which warrants for ‘equitable allocation’.107 Provincial Councils108 are mandated to ensure ‘equitable allocation of resources and quality standards of service’.109 In regard to water quality, the policy on water supply and sanitation110 outlines a strategy to monitor the quality of water, which includes the responsibility of service providers to ensure compliance with national drinking water standards. The rural water supply and sanitation policy makes express provision for hygiene education.111 However, the national policy on sanitation has no provision to address the need for hygiene education.

With respect to affordability, the CBOs in rural areas determine water and sanitation tariffs and are responsible for the management of facilities and services. Village CBOs are registered with the Provincial Councils for these purposes. This system does not guarantee affordability, but creates a process that is likely to ensure it. In urban areas, the NWSDB sets the tariff for piped water supply and sewerage. Domestic water supply is subsidized by higher tariffs for industrial and commercial use, and the NWSDB does not charge a full cost recovery price for domestic water.

The pricing policy is based on the criteria of ‘willingness to pay’ and affordable tariff levels, and has inbuilt safety nets for the equitable allocation of water to the poor and marginalized. For a long period, the Government has provided a subsidy for the initial water connection to inhabitants of low income settlements.

104

National Policy on Drinking Water, s. 1.3 National Policy for Rural Water Supply and Sanitation Sector, s. 2 (vi).

106 Ibid, s. 2 (vii – x).

107 Ibid, s. 2 (ii).

108 Provincial Council is a unit of decentralized Government, with its own legislative, executive and judicial powers.

The subject of water (and sanitation, considered a sub – sector of water) falls under the mandates of both the central and provincial (regional) governments as outlined in the Constitution of Sri Lanka.

109 National Policy for Rural Water Supply and Sanitation Sector, s.s.4.2.

110 National Policy on Water Supply and Sanitation (2002) sections. 3.6.

111 National Policy for Rural Water Supply and Sanitation, s. 3.4 105

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3.4.2. What is conflicting with human rights and human rights principles?

Many of the policy documents impacting the water and sanitation sector, while making provision for features that are supportive of human rights, put a heavy focus on the ‘economic value’ of water, over and above its other features and values.112 Provision of water and sanitation is viewed predominantly in terms of ‘opportunities for investment’ and incremental measures that progress towards full cost recovery for water and sanitation services.113 Policy directions given in the Mahinda Chintana developmental framework specify that a cost recovery tariff for pipe-borne water will be introduced to ensure the sustainability of the sector (subject to a concession offered to the poorest groups as lifeline tariff).114 While partial cost recovery is necessary to ensure the economic sustainability of provision, and as a mechanism to ensure environmental sustainability, ensuring affordable access generally requires a significant government subsidy for all poor groups.

Thus, moves towards cost recovery in Sri Lanka may come into conflict with human rights, depending on their scope.

3.4.3. What human rights principles are missing?

The PRS aims to provide a framework for ‘policy and programmatic interventions designed to connect the poor to economic growth’.115 The MDG report refers to ‘sustained economic growth with greater equity’ as a challenge for Sri Lanka in a context where the MDGs should be achieved. The reports therefore promote a vision of economic growth that is consistent with human rights principles. However, they contain very little explicit reference to human rights principles and do not indicate that the MDGs will be achieved in a manner that takes into account individual rights and corresponding Government obligations to realize these rights. The Sri Lankan legal framework does not recognise the right to water and sanitation explicitly.

In regard to physical accessibility, Sri Lanka does not have a target for universal access to sanitation, but only for water. Policy provisions that address the ‘particular’ concerns of vulnerable and marginalized groups in different regions, as well as within communities are generally lacking. This means that beneficiary identification and poverty profiling in areas marked for participatory initiatives with CBOs in rural areas does not necessarily aim to address needs of groups such as women, children, internally displaced persons, minorities and disabled persons.

Current provisions to infuse ‘equity’ into policy provisions may not be sufficient in view of real problems at the ground level.

The rural water and sanitation policy provisions for community participation in water and sanitation services create important opportunities for individuals and groups to have an influence on decisions having an impact on their rights. However, this does not guarantee that vulnerable and marginalised groups within communities will have any influence. Indeed, policies that grant significant powers to communities may exacerbate disparities between households within communities. The specific concerns of marginalized and vulnerable groups might remain unaddressed.

In the urban setting, participatory approaches need to be established targeting the urban poor in a sustained basis (rather than only in the context of project implementation). An adequate space for user groups to engage in dialogue with the relevant authorities must be available on an ongoing basis. While participatory approaches in the rural sector are advanced in regard to service delivery, they do not necessarily provide for the input of communities into provincial or national policy 112

National Policy on Rural Water Supply and Sanitation, s. 2 (iii), and National Policy on Drinking Water, s.7.1 Mahinda Chinthana: Vision for a new Sri Lanka, p. 84 114 Ibid..

115 Supra note 85 (Regaining Sri Lanka) p. i.

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formulation. Gender mainstreaming is particularly lacking in all the documents that are relevant to realising the MDGs, including the different water and sanitation policies.

A significant challenge in the context of conflict in the north of Sri Lanka, is to ensure access to water and sanitation for the high proportion of people in Sri Lanka affected by the ongoing conflict. These emergency situations lead to significant deprivations of access. However, the capacity to respond to the needs of emergency water and sanitation are at times inadequate, and does not meet the requirements of the exigencies involved. Especially in the context of the conflict in the north of Sri Lanka, where currently thousands are being displaced, there is an urgent need for emergency water and sanitation facilities and services.

There is insufficient attention to obstacles to access adequate water and sanitation in both urban and rural areas including security of tenure. Although there are special initiatives and projects that aim to provide persons in underserved urban settlements with water and sanitation facilities, these initiatives do not address the threats to adequate water and sanitation caused by lack of secure tenure.

Mechanisms for accountability in the implementation of water and sanitation in the context of realizing the MDGs are not apparent. The commitment to the MDGs expressed by the Government is unsupported by any clear measures or mechanisms by which Government is accountable to the population for its decisions at the policy or programme level relating to water and sanitation and other human rights.

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3.5. Laos As of 2005, in Laos, the percentage of the population with access to improved drinking water sources was 79% in urban areas falling to 43% in rural areas, and those with access to improved sanitation was 67% in urban areas and 20% in rural areas respectively.116 Lao PDR is rich in water and water resources with the highest per capita renewable fresh water resources in Asia but has low levels of water and sanitation coverage. This is due to a number of factors. First, Laos has Least Developed Country status, and suffers from a lack of financial resources. Furthermore, over 80% of the population live in small, dispersed communities in remote and inaccessible rural areas, which poses significant challenges for the government in meeting the cost of providing basic social services, including water and sanitation.

3.5.1. What is consistent with human rights and human rights principles?

The Millennium Development target for Lao PDR is to increase the proportion of the population with sustainable access to an improved water source to 80%, and the proportion of the urban population with access to improved sanitation to 70% by 2015.117 Lao PDR's Sixth National Socio-Economic Development Plan (2006-2010), and the National Growth and Poverty Eradication Strategy (NGPES) both set targets and indicators for improved service delivery based on the MDGs and are consistent with human rights principles to progressively extend water and sanitation services to unserved communities.118 The Ministry of Health has set the target of providing 75% of the population in the poorest districts with access to clean water, and 55% with access to safe sanitation by 2010. 119 The Ministry of Health has focused its resources on improving access to water and sanitation for the 72 poorest districts, reflecting the human rights principle to direct scarce resources to target communities which are most in need.120 The Government of Lao PDR has made significant investments in improving the road and transportation system in order to facilitate year round access to remote areas where the poorest live and improve service delivery.121 However, despite the area-focused development approach adopted by the Government of Lao PDR, the NGPES recognises that given the limited financial and human resources, there are significant constraints for full implementation.122 To ensure that development is community driven and people centred the NGPES commits to “ensuring that the Lao people are closely consulted in all areas of decision-making and that they participate fully in the economic, social and political development of the country,�123 including in project planning, implementation and monitoring.124 The NGPES commits to building the capacity of local communities to engage in participatory planning in particular for the 47 poorest districts.125 The NGPES further highlights its commitment to strengthening capacity at all levels, 116

United Nations ESCAP, UNDP and Asian Development Bank, The Millennium Development Goals: Progress in Asia and the Pacific 2006, (2006) p. 48.

117 The Government of the Lao PDR and the United Nations, Millennium Development Goals Progress Report Lao PDR, p.56.

118 The Sixth National Socio-Economic Development Plan (2006-2010) establishes Health Sector Targets to be achieved by 2010 which include: to increase access to safe water to 75% of the population; to increase access to safe water in rural areas to 75% of the population; to achieve coverage of toilet facilities meeting sanitary standards to 60% of the population; to increase the proportion of schools having segregated facilities to 35% of the population.

See, Lao People's Democratic Republic, Committee for Planning and Investment, The National Socio-Economic Development Plan (2006-2010), (2006), p.154.

119 Ibid. p. 155.

120 Ibid. p. 154.

121 Laos People’s Democratic Republic, National Growth and Poverty Eradication Strategy, p.93.

122 Ibid., p. 57.

123 Ibid., p.48.

124 Ibid, p. 24.

125 Ibid. p. 150.

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specifically at the district level, in order to practically enable participation in the planning process through producing questionnaires to enhance interaction between villagers and district officials for data collection and planning processes.126 The result of this approach is expected to be the improved targeting of projects for poverty alleviation, more efficient allocation of resources and local ownership of the planning process.127 Project monitoring is also to include participatory exercises and traditional household surveys.128 In terms of water and sanitation provision, the NGPES states that no physical works should be implemented without the prior establishment of participatory beneficiary institutions including Water User Associations. The NGPES further provides that “broad participation will be promoted to ensure strong community ownership and local transparency and accountability”129 and encourages the active participation of women, particularly poor and ethnic minority women.130 The NGPES seeks to adopt a decentralized approach to development and redefine central-local relations. It establishes provinces as strategic planning units, districts as programme, project planning and budgeting units, and villages as the main focus for project implementation.131 The Northern and Central Regions Water Supply and Sanitation Sector Project (NCRWSSSP)132 has implemented participatory approaches in practise. Public participation in the implementation of the project at the local level is facilitated through the village Water and Sanitation Associations (WATSANs). WATSANs are established at each level to represent villagers in cooperation with the Project Coordination Unit (PCU). Each village has 7 WATSAN members, which are elected out of 10 candidates in a secret election. At least 30 per cent of the representatives of each unit should be women or from ethnic minorities.

The National Health Strategy as set out in the NGPES recognizes that access to a clean water supply is a key factor in controlling the outbreak of disease. The Ministry of Health is responsible for determining water quality standards for drinking water and the treatment of wastewater and has a long-term programme in place to reduce pollutants. The Hygiene, Disease Prevention and Health Promotion Law (2001) requires that every water source must be subject to quality analysis.

However, in practice Lao PDR does not have the resources to conduct regular water testing and carries out random sampling in the provinces. Whilst the water quality at water sources in Lao PDR is generally good due to low levels of agricultural and industrial activity health problems due to water-borne diseases remain prevalent due to a lack of knowledge especially in rural areas on safe water storage at the household level.133 In 2000, there were 12,440 cases of Acute Diarrheal Diseases/Cholera resulting in 520 deaths.134 In light of this reality, Lao PDR has focused its attention on hygiene education and disease prevention. The Health, Information and Communication (IEC) campaign seeks to communicate policy directives on health to the population, particularly those in remote, difficult to access areas - who lacking access to an improved water supply, are often dependent on water taken from springs and streams - including information on boiling drinking water and hygiene awareness. The NGPES sets the target of expanding the IEC to reach 85% of all villages by 2005.135 Improving access to information on water and sanitation, a key human rights principle in itself, and necessary to realise the right to 126

Ibid. p. 35.

Ibid.

128 Ibid.

129 Ibid., p.142.

130 Ibid., p. 113.

131 Ibid., p.128.

132 This is a project co-financed by ADB, NORAD, OPEC and UN-HABITAT which aims to improve the quality, reliability and sustainability of water supply services and improve the environmental conditions in selected small towns in the Northern and Central region of Lao PDR. 133 The Government of the Lao PDR and the United Nations, Millennium Development Goals Progress Report Lao PDR, p.57.

134 Laos People’s Democratic Republic, National Growth and Poverty Eradication Strategy, p. 89.

135 Ibid. p.84.

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water and sanitation and to health is to be achieved through utilization of mass media and the school curriculum. Through the IEC the government commits to initiating health broadcasts for local radio stations in both Lao and ethnic languages in selected provinces; initiating health programmes and materials for TV channels and newspapers; integrating health promotion into the curriculum and expanding the primary school sanitation programme.136 The National SocioEconomic Development Plan stresses that improving access to information is also important to both increasing people's ability to participate in the socio-economic development of the country and improving their knowledge about their rights and obligations.137 However, there is no expressed recognition of a right to information.

Lao PDR’s Sixth National Socio-Economic Development Plan (2006-2010) states its commitment to achieving gender equality, including through improving women’s access to basic services and involving them in decision making, and includes plans for all ministries to develop strategies and plans of action to promote gender equality at national, provincial, district and villages levels.138 Likewise, gender issues are mainstreamed throughout the NGPES which states that “ensuring equal access to basic services and productive resources is a matter of equity, efficiency and effectiveness.”139 3.5.2. What is conflicting with human rights and human rights principles?

Due to the difficulty of accessing, and providing services to upland areas in difficult terrain where many small isolated communities of ethnic minority groups live, the Government has adopted the approach of relocating such communities to accessible service centres, seeing this option as both more practical and affordable considering the country’s present stage of development.140 However, this policy raises concerns of cultural inadequacy, as such ethnic minority groups have a distinct way of life that is intimately connected to the land they have lived on for generations and their access to natural resources including forests, agricultural land and water resources such as streams. It is therefore necessary to develop water and sanitation access strategies, in consultation with minority communities, which aim to provide public services to these communities that minimise, as far as possible, the need for re-settlement. An important component of such strategies should include recognition of the land rights of ethnic minority groups, protection of traditional sources of water and customary access as well as the right of minority groups to fully participate in decision-making relating to their situation.

Lao PDR’s Millennium Development Goals Progress Report notes that significant obstacles to achieving the targets on water and sanitation include the lack of equity in public investment between urban and rural areas, particularly the lack of infrastructure and human resources in remote rural areas and lack of external financial support for rural areas.141 The Government’s development plans seek to encourage foreign direct investment in Lao PDR and the private sector to take a role in service provision, including water and sanitation. Whilst not conflicting with human rights principles per se, the Millennium Development Goals Progress Report notes that an appropriate regulatory framework for private-sector participation in the water and

136

Ibid.

Lao People's Democratic Republic, Committee for Planning and Investment, The National Socio-Economic Development Plan (2006-2010), (2006), p. 97.

138Lao People's Democratic Republic, Committee for Planning and Investment, The National Socio-Economic Development Plan (2006-2010), (2006), p.5.

139 Laos People’s Democratic Republic, National Growth and Poverty Eradication Strategy, p.8.

140 Lao People's Democratic Republic, Committee for Planning and Investment, The National Socio-Economic Development Plan (2006-2010), (2006), p.94.

141 The Government of the Lao PDR and the United Nations, Millennium Development Goals Progress Report Lao PDR, p.57-58.

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sanitation sector is yet to be developed.142 Having a regulatory framework in place is essential in order to ensure that possible future privatisation of water and sanitation services and facilities does not lead to increases in prices or failure to provide services to marginalised groups which could result in poor people’s access to water and sanitation being curtailed and is a key aspect of a government’s obligation to protect the right to water and sanitation.

3.5.3. What human rights principles are missing?

Lao PDR does not yet formally recognise the right to water and sanitation. Despite being rich in water and water resources, in Lao PDR lack of access for both domestic and agricultural use, particularly in rural areas, results in the poorest using less than half the national average of daily water use.143 National standards in Lao PDR do not officially stipulate a minimum amount of water for personal and domestic uses per person per household, or pay significant attention to the amount of water allocated for small-scale and subsistence agriculture, once personal and domestic needs are met. There is no clear commitment on ensuring physical security when accessing water and sanitation facilities. There is no clear policy commitment to providing water and sanitation facilities to informal settlements.

Lao PDR does not have a target for universal access to water and sanitation. Water sector reforms in Lao PDR have targeted schools for priority in water supply and for the construction of sanitation facilities. The NGPES set the target of providing 20 percent of primary schools with hygienic latrines between 2003 and 2005144 and health sector targets seek to increase the proportion of schools having segregated facilities to 35% of the population by 2010.145 Lack of separate facilities has been a factor in discouraging female school attendance, particularly at the secondary and higher levels of education.146 No clear national policy exists to ensure affordability of water and sanitation services and to provide assistance to those unable to realise the right themselves. While the Water Supply Authority reportedly in practice does not cut off the service to poor people for non-payment, such a decision appears to be at the discretion of the supplier as the laws and policies relating to disconnections do not contain an exemption for those who are genuinely unable to pay. Currently the price of potable water supplied by the state-owned water companies (PNPs) is comparatively low throughout Lao PDR147 and for poor families in urban areas, a lifeline tariff significantly reduces the price of drinking water provided through a household connection. The target for Department of Housing and Urban Planning is that the price of 7m³ of water does not exceed 5% of family income. In practice, it reportedly never exceeds 3% of household income for those connected to the system.148 However, the Lao PDR’s Millennium Development Goals Progress Report still notes that in the poorest areas, few people can afford water.149 In most cases, however, it is not the water tariffs that make household water services unaffordable for the poor, but the connection fees, which can be in excess of USD 100. Those not connected to the water 142

The Government of the Lao PDR and the United Nations, Millennium Development Goals Progress Report Lao PDR, p.58.

143 Laos People’s Democratic Republic, National Growth and Poverty Eradication Strategy, p. 117.

144 Ibid. p.88.

145 Lao People's Democratic Republic, Committee for Planning and Investment, The National Socio-Economic Development Plan (2006-2010), (2006), p.154.

146 The Government of the Lao PDR and the United Nations, Millennium Development Goals Progress Report Lao PDR, p.27 147 An overview (although not up to date) of water tariffs per province is available at: http://www.wasa.gov.la/english/water_tariff.html 148 Note that this is an administrative practice which thus far does not exist in official documents.

149 The Government of the Lao PDR and the United Nations, Millennium Development Goals Progress Report Lao PDR, p.

58.

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supply often pay up to ten times more for untreated water from wells and tanks provided by water vendors. In addition, regulation of small-scale service providers to ensure provision of safe and affordable water is not adequately addressed in current water sector strategies.

Lao PDR is characterised by significant cultural and ethnic diversity. A 1995 Government census recognized 47 main ethnic groups and 149 subgroups.150 Non-Lao ethnic people (specifically the slope and mountain dwellers) are underrepresented at all political levels, and those living in remote rural areas, especially mountain areas, have much lower levels of access to water and sanitation facilities than the Lao ethnic group which tends to be concentrated in urban, low land areas, or areas located on major national roads. Whilst Lao PDR’s National Socio-Economic Development plan and the NGPES both state their commitment to promoting equity among and the well being of Lao PDR’s various ethnic groups, national water and sanitation policies do not adequately address the needs of ethnic minorities, for example by establishing targets for minority groups.

In Lao PDR there are a large number of actors involved in urban and rural water and sanitation service provision at the national, provincial and district levels. In some cases, this has led to fragmentation, overlap and lack of clarity with regard to responsibilities. The framework in Lao PDR does not address the provision of remedies to persons and groups who have been denied their right to water and sanitation. Given the lack of formal recognition of the right, users do not have access to effective judicial or other appropriate remedies at the national level.

150

Government of the Lao People’s Democratic Republic for the Asian Development Bank, Indigenous Peoples Development Planning Document: Laos People’s Democratic Republic: Northern Region Sustainable Livelihoods Development Project, (August 2006).

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4. The way forward in integrating human rights in MDG-based water and sanitation policy making: Policy recommendations and good practices 1. It is necessary to carry out a cross-ministry review of the water and sanitation law and policy framework, taking into account law and policies relating to water supply, sanitation, water resource management, public health and land use and related areas to ensure that they fully reflect human rights principles. Human rights-based goals and targets should be established and used in economic planning and budget formulation.

2. It is necessary to ensure a process whereby local government is held accountable by the national government, as well as by other entities, such as the judiciary, for implementation of national goals in their locality. National targets should be translated into local-level targets.

Human rights-based targets should be used to structure programmes to transfer funds from the national level to local government.

3. Legal reform should be seen as a key element of meeting the MDG target 7 C in a manner consistent with human rights. The human right to water and sanitation should be firmly entrenched in national law and all relevant policies on water and sanitation where this is not already the case. South Africa’s recognition of the right to water at the constitutional and national law and policy level is a good practice.

4. Targets for achieving universal access to water and sanitation need to be established where these are not already present. Access targets should give priority to the provision of water and sanitation in schools, including separate facilities for boys and girls and at health centres.

There should be targets for continuity of supply to limit disruption of access caused by water rationing.

5. Where they do not exist, access targets should be established for sanitation including: access to a culturally acceptable, safe and adequate toilet or latrine within each household, provision of hygiene education and facilities to ensure safe disposal of waste-water, sewage and excreta from latrine exhaustion away from human settlements and water sources.

6. National frameworks should ensure that the particular requirements of vulnerable and marginalised groups, such as women, children, internally displaced persons and refugees, residents of arid and semi-arid areas and informal settlements, are addressed in the development of these plans, with the participation of genuine representatives of these groups.

7. It is necessary to identify the resources required to provide for extension of access, as well as the funds required to ensure participatory decision-making to ensure accountability. Such spending should be treated as an investment that will ensure the sustainability of water and sanitation programmes. A significant proportion (the “maximum available�) of national GDP, government revenue and international assistance (at the global level and per donor) should be allocated to the extension of water and sanitation services and maintaining affordable access. It is important to avoid relying on cost recovery for more than part of the operations and maintenance costs of water and sanitation. Almost all extensions of access to piped water and sewerage have historically required significant public spending rather than user payments.

8. A significant proportion of the water and sanitation budget and of international assistance should be specifically targeted towards vulnerable and marginalised groups. This can be done by targeting locations and forms of technology used by such groups. A useful step would be to require that water, sanitation and health institutions devote a sufficient fixed percentage of resources and capacity towards hygiene education for all persons and assistance to households relying on small-scale water and sanitation. One good practice is the Kenyan Water and Sanitation Trust Fund, which was established to focus on rural water provision

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(and is now carrying out pilot projects in urban informal settlements), with funds expressly directed towards the poorest locations.

9. Sector plans relating to water resource management should specify minimum quantities of water for personal, domestic and subsistence uses and prioritise access to such essential amounts. Water supply plans also need to ensure a target for minimum levels of disruption, and a system whereby the burden of rationing (where necessary) can be spread equitably.

10. It is necessary to integrate into national frameworks standards for ensuring affordability, and to adopt measures that ensure affordable access, not just for those relying on networked provision, but also those relying on small-scale water and sanitation. Subsidy measures should be explicitly pro-poor and should be focused on assisting those without access (for example through subsidies for connections). One good practise is the provision of subsidies for connections in Sri Lanka.

11. National frameworks should emphasise the development of strong regulation of service provision (whether the provider is public, including local government, or private) to ensure compliance with right to water and sanitation standards and targets, in particular on extension of access. Informal service provision should be regulated at least in relation to quality and price of service and incorporated into the formal system where possible.

12. National frameworks should require that water and sanitation authorities provide all relevant information in an accessible form to all people and that all people, including members of marginalised and vulnerable groups are given an opportunity to participate in decision-making affecting their rights. Training, as necessary and requested, should be provided for the representatives of marginalised and vulnerable groups in order to ensure that they can participate on an equal footing with other groups. An explicit right to information and participation should be reflected in national law in order to ensure sufficient attention to this imperative.

13. As a component of national plans to meet the MDG target 7 C, provision should be made to establish and invest in effective, independent and easily accessible complaints mechanisms to address denials of, or interferences with, any person’s right to water and sanitation. Such mechanisms will help prevent against corruption and create an environment suited towards ensuring accountability for the funds and responsibilities provided to decision makers.

14. In order to facilitate accountability, it is necessary for national planning documents to establish a clear division of responsibility between relevant government actors, which is clearly disseminated to the population. This is particularly relevant in regard to small-scale sanitation and water resource management.

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The significance of human rights in MDG-based policy making on water and sanitation: An application to Kenya, South Africa, Ghana, Sri Lanka and Laos This publication addresses the need for MDG based policy making to incorporate human rights standards. It shows that human rights standards relating to water and sanitation address critical aspects such as affordability, participation and accountability which are required in order to ensure that everyone has access to safe and affordable water and sanitation. Such requirements are not explicitly contained in the MDG target on water and sanitation which aims to halve, by 2015, the proportion of people without sustainable access to safe drinking water and basic sanitation.

In order to practically demonstrate the utility of human rights standards, this publication analyses MDG-based policies and sector strategies from five countries identifying current trends and any critical gaps. It reviews the extent to which such policies are consistent with human rights principles, are conflicting or fail to reflect human rights principles. It shows how gaps in MDG-based policymaking can be usefully filled by more explicit and systematic consideration of human rights standards.

Established in 1992, the Centre on Housing Rights and Evictions (COHRE) is an international, nongovernmental human rights organization committed to ensuring the full enjoyment of economic, social and cultural rights for everyone, everywhere, with a particular focus on the human right to adequate housing and adequate public services for all.

The COHRE Right to Water Programme (RWP) was established in 2002. It advocates for reforms in international, national and local governance to achieve the right to water and sanitation for all. It promotes governance reforms to ensure the right to water and sanitation for all and supports advocacy for the right by civil society, particularly marginalised communities. Its focus countries include Kenya, Argentina, South Africa, the occupied Palestinian territory, Israel, Sri Lanka, Brazil, Ghana, Indonesia and Cambodia. RWP promotes at the global level the importance of the right to water and sanitation and provides information to governments on how they can successfully implement the right and international organisations and civil society on how they can advocate for such implementation. It promotes international law and policy standards to strengthen the recognition and implementation of the right to water and sanitation.