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What is the Right to Water and Sanitation?
How do human rights improve Water and Sanitation Service Delivery?
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A human rights approach to water and sanitation means that individuals and communities are entitled to demand that laws, policies, plans, budgets, strategies and practices respect and promote human rights standards. Not all laws, policies and practices are acceptable only those that observe human rights standards.
nternational human rights consider access to water and sanitation as a human right. This means that all individuals are entitled to have access to an essential amount of safe drinking water and to basic sanitation facilities. The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use. Water and sanitation are deeply interrelated. Sanitation is essential for the conservation and sustainable use of water resources, while access to water is required for sanitation and hygiene practices. Furthermore, the realisation of other human rights, such as the right to the highest attainable standard of health, the right to food, right to education and the right to adequate housing, depends very substantially upon the implementation of the right to water and sanitation. The definition of the right to water and sanitation is provided by the General Comment 15: The Right to Water adopted by the United Nations Committee on Economic, Social and Cultural Rights in 2002 and the Guidelines for the Realization of the Right to Drinking Water Supply and Sanitation adopted by the UN Sub-Commission on the Promotion and Protection of Human Rights. These two documents, taken together, indicate that the right comprises the following: •
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Sufficient water. An adequate quantity of water supply must be available for personal and domestic uses, which includes drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene. WHO standards provide for between 50-100 litres, and an absolute minimum of 20 litres per person per day. Safe water. Water that, in particular, is free from harmful substances that could endanger human health, and whose colour, odour and taste are acceptable to users. Accessible water and sanitation. Water and sanitation services and facilities must be within safe physical reach, in or near the house, school, work place or health facility, in a secure location and address the needs of different groups, in particular threats to the physical security of women. Affordable water and sanitation. Water and sanitation must be affordable, without reducing the individuals or household’s capacity to acquire other essential goods and services. Water availability, allocation and sustainability. The allocation of water resources must give priority to essential personal and domestic uses. Water sources must be protected against degradation and pollution to ensure safe water for present and future generations.
Therefore, a human rights approach to water and sanitation: • •
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Demonstrates that water and sanitation are legal entitlements, not charity.Therefore the right to water and sanitation demands accountability of governments, the international community and the private sector. Grassroots communities and civil society can use the right to raise the political profile of the importance of access to water and sanitation services. Individuals and groups can demand that the right is implemented through lobbying their government, seeking redress from national human rights commissions and courts or from international human rights mechanisms and to demand progressive allocation of resources. Requires information sharing and genuine participation in decision making, ensuring that the most vulnerable and marginalized individuals can influence relevant decisions. Focuses on vulnerable and marginalized groups , who have been historically discriminated against or neglected such as residents of informal settlements. Defines minimum requirements for water and sanitation. Provides a framework and guidelines for the development of and reforms to public policies and plans, to prioritise resources, and to monitor performance
Legally binding treaties ratified by Kenya that guarantee the right to water and sanitation The right to water is provided for under various international human rights instruments. The government of Kenya has ratified these instruments meaning that it is bound by their provisions. These instruments obligate the government to take all steps necessary to address the right to water and sanitation.These include international instruments that have achieved the status of international customary law such as the Universal Declaration of Human Rights, 1948. When a State “ratifies” a treaty, it is required, under international law, to realize the rights contained in that treaty for all persons within its jurisdiction. Kenya has committed itself to the following human rights treaties:
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4 The International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR), recognises the “right of everyone to an adequate standard of living, including adequate food, clothing and housing”. The UN Committee on Economic, Social and Cultural Rights, which is the expert body responsible for monitoring and interpreting the ICESCR, issued General Comment No. 15 on the Right to Water in 2002. It emphasises that the right to water, as well as adequate sanitation is a necessary component of the right to an adequate standard of living and describes the content of the right and the scope of State’s obligations.The General Comment therefore provides important advice to States on the steps they should be taking to implement the right to water for all and can be used by civil society to strengthen their rights claims. The Convention on the Elimination of All forms of Discrimination against Women, 1979 (CEDAW) obliges States parties to ensure that rural women have access to water supply and sanitation. The Convention on the Rights of the Child 1989 (CRC) states that children have the right to the enjoyment of the highest attainable standard of health and requires States parties to combat disease and malnutrition “through the provision of adequate nutritious foods and clean drinking water”. The International Convention on the Elimination of All Forms of Racial Discrimination, 1965 (ICERD) guarantees that nobody should suffer from direct or indirect discrimination based on race, colour, decent, religion or national or ethnic origin. Withholding equal access to water and sanitation services for people of one ethnic group, amounts to racial discrimination and would be a breach of a States legal obligations under ICERD. The Convention on the Rights of Persons with Disabilities, 2006 establishes that the right to social protection requires that States “ensure equal access by persons with disabilities to clean water services”.The Convention entered into force on 3 April 2008. The African Charter on the Rights and Welfare of the Child, 1990 provides that children have the right to the enjoyment of the best attainable state of physical, mental and spiritual health and requires States parties to pursue the full implementation of the right and “to ensure the provision of adequate nutrition and safe drinking water”. The African (Banjul) Charter of Human and People’s Rights, 1981 provides that every individual has the right to enjoy the best attainable state of physical and mental health. This provision has been interpreted to require States to provide basic services necessary for a minimum standard of health, such as safe drinking water and sanitation.The Charter further provides that everyone “shall have the right to a general satisfactory environment favourable to their development.”
Kenya has also acknowledged the right to water and sanitation in a number of international and regional forums which include two declarations unanimously adopted by all 118 Member States of the Non-Aligned Movement. Kenya also endorsed the right to water and sanitation through the 1994 Programme of Action adopted at the Cairo International
Conference on Population and Development and the 1996 Habitat Agenda, both of which explicitly recognise that the right to an adequate standard of living includes the right to have access to water and sanitation. In February 2008 at the AfricaSan Conference on Sanitation and Hygiene, held in Durban South Africa, Kenya supported the adoption of the eThekwini Declaration that sought to raise the profile of sanitation and hygiene as a crucial component to economic development and poverty reduction.
The right to water and sanitation at the national level Kenya included the right to water and sanitation in its 2004 Bomas Draft Constitution and in the 2005 Proposed New Constitution of Kenya. In both draft constitutions the right to water and sanitation was recognised as a fundamental human right capable of judicial enforcement. The draft constitutions provided that “every person has the right to water in adequate quantities and of reasonable quality and the right to a reasonable standard of sanitation.” However in a national referendum held in November 2005, the Proposed New Constitution of Kenya was rejected. The Government has nonetheless initiated reforms in the water sector including the adoption of the Water Act of 2002 and several policy documents designed to enhance 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”.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”. The Pro-Poor Implementation Plan for Water Supply and Sanitation (PPIP WSS) 2007 provides that the Government through the Ministry of Water and Irrigation commits to move as fast and effectively as possible towards the meeting the Millennium Development Goals and to fulfil the human rights to water and sanitation. The target of the Millennium Development Goals is to half by 2015 the proportion of people without sustainable access to safe drinking water; and thereafter moves to universal coverage responding to minimum standards by 2030 by giving access to the poor the highest priority on all levels. In 2007, the Ministry of Water and Irrigation (MWI) declared that human rights principles together with the MDG orientation shall guide the water sector reform process in Kenya. In its publication Water Sector Reform and the Human Right to Water in Kenya (2007) the MWI indicates that as human rights are universal principles, the MWI expects donors to align to these by harmonising their actions and programmes to the sector policies and strategies.
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What are the duties of Government?
Duties, responsibilities and priority action for communities and civil society organisations
Kenya as a State party to a number of treaties is expected to incorporate the rights guaranteed in the treaties it has ratified into domestic law and policies. This means that the Government must formulate laws, national action plans, budgets, policies and strategies that are consistent with and will ensure the right to water and sanitation for all people. In particular States that have ratified the ICESCR must take the necessary steps to ensure that everyone has access to water and sanitation as soon as possible. Some steps can be taken immediately, such as preventing discrimination and putting in place a targeted plan to achieve the right. Other steps can take time to implement. But the Government must demonstrate that they are doing everything possible within available resources to realise the right to water and sanitation.
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A State holds three types of obligations, which are of immediate effect: Respect: States must refrain from interfering directly or indirectly with the enjoyment of a right. For example, States should refrain from arbitrarily interfering with customary or traditional arrangements for water allocation, or from unlawfully diminishing or polluting water resources. Protect: States must prevent “third parties” (such as corporations, water cartels and landlords) from interfering with the enjoyment of a right. For example, States should adopt effective legislative and other measures to prevent third parties from denying equal access to water or polluting or inequitably extracting from water sources. Fulfil: States must facilitate a right by taking positive measures to assist individuals and communities to enjoy the right. For example, by providing the necessary financial and human resources to improve access to basic sanitation systems. State are to promote a right, for example, by ensuring that there is appropriate education concerning the hygienic use of water, the protection of water sources and methods to minimise wastage. State are obliged to provide a right when individuals or a group are unable, for reasons beyond their control, to realise that right themselves by the means at their disposal. For example, by constructing a water point in a community that doesn’t have access to safe drinking water.
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In implementing the right to water and sanitation it is important to focus on applicable human rights principals. These included the principles of non-discrimination and attention to vulnerable and marginalised groups: equitable allocation of resources, address needs of each group; the genuine participation and access to information at all levels, and the need to uphold the principles of transparency and accountability including the provision of redress or complaints mechanisms.
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Encourage the active participation of everyone in the water sector reforms, particularly those underserved or who are currently not provided water and sanitation services. This can be achieved by participating in water resources management and conservation by joining a Catchment Area Advisory Committee or a Water Resources Users Association. Individuals and communities must use water and sanitation facilities responsibly and spread knowledge within the community of good hygiene practices. Individuals and communities must pay for water and sanitation services, according to the capacity of each household. Identify the needs and priorities of all members of the community, monitor service provision and propose appropriate water and sanitation policies to government bodies. Provide information to local authorities and water sector institutions on cases such as vandalism, corruption and request that they take action to remedy the problem. Lobby Government to make sure that laws, policies and budgetary allocation are in accordance with international standards on the right to water and sanitation and press for the inclusion of recognition of the right to water and sanitation in domestic law. Inform individuals and communities of government obligations and their own responsibilities; promote monitoring of government and private actors and use official monitoring and complaint mechanisms. Ensure that Civil Society activities are coordinated and that their work supports and does not duplicate work done by government, other NGOs or international organisations. NGOs should strive to strengthen community and government capacity and knowledge on water and sanitation issues, including on rights and responsibilities, management and technical information. Civil Society Organisations can utilise United Nations periodic monitoring mechanisms such as providing reports to the Committee on Economic, Social and Cultural Rights and the Human Rights Council, which can give recommendations to the State on how to better achieve the right. Individuals and Civil Society Organisations can bring violations to the attention of the UN Independent Expert on access to safe drinking water.
For more information on the right to water and sanitation contact: Hakijamii Trust P.O. Box 11356 – 00100 2nd Floor, Golf Course Commercial Centre Kenyatta Market Nairobi, Kenya Tel: +254-020-2731667 / 2720751 Fax: +254-020-2726023 Email: esrc@hakijamii.com Or contact COHRE’s Right to Water Programme at: Centre on Housing Rights and Evictions (COHRE) Right to Water Programme P.O. Box 26930 - 00100 Nairobi, Kenya Tel: +254-020-2136171 Mobile: +254-722-591435 / 733-484994 Email: kerubo@cohre.org, water@cohre.org www.cohre.org/water www.cohre.org/kenya
Acknowledgements: Illustrations and design: Peter Wambu (0722-524394) Brochure development funded by: Cordaid and NORAD
The Right to Water and Sanitation Kenya “The right to water entitles every person to have access to sufficient, affordable water and sanitation of acceptable quality for personal and domestic use” Ministry of water and Irrigation, Water Sector Reform and the Human Right to Water in Kenya (2007)