No. 5: The Contribution of Human Rights to Overcoming the Global Water and Sanitation Crisis

Interview with the UN Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation – Ms. Catarina de Albuquerque- and Kerubo Okioga, Centre on Housing Rights and Evictions, (COHRE) Kenya

Background

Today 1.1 billion people do not have access to clean water. These figures reflect massive inequalities in access to water. The world’s poor and marginalized suffer most from lack of access to water. The poorest people not only get access to less water, and to less clean water, but they also pay some the world’s highest prices for water services. Increasingly it is recognised that at the heart of the water crisis is not only a problem of availability of water but, most importantly, one of access. A challenge directly linked to power, poverty and inequality.

As the structural dimensions of these challenges are emerging, human rights are increasingly promoted as a means of improving access to water.This article looks at the contribution that human rights may make in addressing the global water and sanitation crisis.

Part 1: Interview with the UN Independent Expert on the the issue of human rights obligations related to access to safe drinking water and sanitation- Mrs. Catarina de Albuquerque

1-Why did the Human Rights Council think there was a need to create the position of UN Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation?

Civil society and States, such as Germany and Spain, felt that not enough attention was paid to water and sanitation issues by the existing human rights mechanisms.  A study was presented to the Human Rights Council in 2007. It referred to outstanding issues that need further analysis and attention; such as: what is the relation between privatisation of water services and human rights? What are the human rights obligations related to sanitation?  It was proposed to create a new mandate on human rights, water and sanitation, which would be able to look at these issues.  This proposal was unanimously adopted by the UN member states sitting in the Human Rights Council.

It is also worth mentioning that there has been more attention paid to water than to sanitation. For example the General Comment by the Committee on Economic, Social and Cultural rights focuses on the right to water and leaves sanitation aside. But we know that safe drinking water is not achievable without proper and improved sanitation. As there has been very little written on the right to sanitation and generally talking about this issue is “taboo”, I have decided to dedicate my ‘mandates’ first year to this issue.

More information on the UN Independent Expert’s priorities and programme of work can be found in the 2008 March Report, soon available at: http://www2.ohchr.org/english/bodies/hrcouncil/10session/reports.htm

2- What is the specific contribution of the human rights framework to addressing the water and sanitation crisis?

There are two main contributions that human rights provide to addressing the water and sanitation crisis.

1). More understanding and acceptance of the human rights obligations related to water and sanitation will ensure that the policies and measures undertaken by States and development actors, as well as the infrastructures built, take into account the needs of the poorest and most marginalised groups.

Often it is only the upper and middle-income groups that benefit from State action in this area. In fact figures can be blind. For example, a reduction of 10 or 20% of the number of people without access to sanitation on average may camouflage that these results are only to the benefit of middle and higher income groups, not the poorest.

2) Using the human rights framework also promotes greater accountability for Governments. People can claim the respect, protection and fulfillment of a legal entitlement, not just a moral obligation. The vindication of rights can be made at courts of law and we already have some jurisprudence dealing with the right to water at national as well as regional tribunals.

Now at the multilateral level, once the new Optional Protocol to the International Covenant on Economic, Social and Cultural Rights has entered into force, individuals will have the possibility to present complaints against States that have allegedly violated their right to water. It will be then the Committee on Economic, Social and Cultural Rights – that has issued the General Comment on the Right to Water and who considers this right to be enshrined in the Covenant – that will adjudicate these cases. This can give rise to important developments not only at the international level but also, and most importantly, at the national level.

Part 2: Interview with Kerubo Okioga, COHRE Kenya: Implementing a HRBA to Water Sector Reform in Kenya

1- What are the recent developments in the Kenyan water sector?

The water sector in Kenya has been undergoing large scale reforms in the last 6 years, spearheaded by the Water Act of 2002. The main objective of the National Water Policy was to establish an efficient and effective institutional framework to guide development and management of the water sector. It also called for de-centralization of operational activities from the central Government to other actors, including local authorities, the private sector and increased involvement of communities, to improve efficiency and sustainability in service delivery.

With the passing of the Water Act and consequent water sector reforms, the Government committed itself to adopting a human rights based approach in the water sector. 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.

2- How has a human rights based approach impacted your work on improving access to water for all?

The Government’s commitment to adopting a human rights based approach (HRBA) in the water sector has led to a dramatic change. From a sector completely separated from the people to one where for the first time, the government is talking to its people.

From my perspective, the most important principles of a HRBA are those of equality, non-discrimination and participation.  These have had an impact on the water sector in the following ways:

Participation and non-discrimination

  • Including the poor in decision making:

Previously, participation was very removed from the normal way of doing business; Governments would only dialogue with “important people”- donors and private actors. Now the poor can no longer be ignored.

There is a constant flow of information from the authorities to the people. For instance in 2008, the Nairobi City Water and Sewerage Company, the water service provider for Nairobi, formed an informal settlements department to exclusively  deal with the expansion of water and sanitation services to the informal settlement and ensure consistent information exchange between the residents and the company.

At the national level the Government through the Ministry of Water and Irrigation has facilitated a number of multi-stakeholder forums and conferences.

  • Fighting corruption

Inclusive participation is also critical for combating corruption, which is a big issue in Kenya.  Water sector institutions have developed complaint mechanisms that have increased community monitoring of services. The accountability of water sector institutions is demanded through the development and enforcement of regulations that comply with human rights standards. In Kibera informal settlement, for instance, there have been increased reports being made to sector institutions on illegal water connections run by cartels and in some instances influential local leaders.

However, these mechanisms are effective on paper only. When people make complaints, often, there is no action. Yet, at least people are aware that they are entitled to a certain level of service, from whom to demand the service and where to forward complaints or recommendations. With this knowledge the people are able to monitor service provision and recognise inconsistent implementation by sector institutions of the right to water.

Despite this challenge, it is still a huge step for the Government to make this commitment. The HRBA has provided tools and principles to enable the Government to move away from political rhetoric and focus on addressing underserved and un-served areas that had been historically excluded.

3- What have been the main challenges in adopting a human rights based approach in the water sector in Kenya?

Progress has been very scattered and slow. The main challenge remains in implementing the reforms, in particular in:

  • Reaching poor and marginalised groups

Reforms were made to better reach the poor and marginalised. Yet those who most need the water still don’t get access to water services. A specific effort to reach the areas of greatest needs and to focus on vulnerable and marginalised groups is needed

  • Ensuring Information is ‘user friendly’

While more information is now shared on water issues, key draft policies and regulations are only available at a cost and whilst information is often shared in national newspapers, these may not be read by the majority and by the most vulnerable and marginalised groups.

  • Enforcing minimum standards

More also needs to be done to enforce minimum standards for all consumers- not only the middle and upper income groups. These include improved water quality testing standards, particularly for those that rely on small scale vendors; equitable access to water and sanitation facilities through up-scaling and fast tracking extension of water and sanitation facilities; developing national standards/ regulations on disconnections and water rationing that does not disproportionally affect the poor.

For the poor, the most crucial issues is just to get access at a constant price- they are asking for the ‘bare minimum’. A human rights based approach can empower them to ask for more- such as better services.

  • Participation

In regards to participation, the Government has introduced stakeholder forums. These are held whenever a new policy is being developed.  But the issues discussed are very technical and hard to understand for the non water expert. Also, there is a sense that decisions have already been made and that these forums are just an exercise for appearances sake.

  • Political Will

One of the major factors behind the slow progress in the reforms relates to the question of political will and ‘who was behind the reforms?’ The impression is that the reforms were motivated by the donors. As a result, the reforms are not owned by the government, and political will to implement the reforms is lacking. 

The human rights framework provides a basic standard that have to be met, which can be useful for assessing political will, bearing in mind the principal of progressive realisation. The human rights framework can act as a road map to help monitor whether commitments have been implemented. Other wise, you are left with technical standards- how many wells were dug?  how many pipelines introduced? etc, not human rights concerns, such as how many people don’t have access?

  • Data and indicators

This brings us to another important challenge in implementing a HRBA to water.  There are no indicators and statistics on who has and who does not have access to water. The numbers tend to be engineered for political motivations.

  • Enforcing the Law

Lastly, on the point of rule of law, some say that “in the absence of the ability to implement the law, the law is useless”.  On the other hand even though the law often does go un-enforced, we find that the legal and policy framework can be very useful to make legitimate demands- we can tell the government “these are commitments made by YOU and they are commitments that are not being met”. So for advocacy purposes the rights enshrined in law and policy are useful tools for us.

The rights language has also proved a useful bargaining tool between communities and authorities. It provides a language that people can use to claim better water services- people can cite the promises that the government has committed to.

Steps forward
Development actors and other civil society organisations can play a critical role in advancing the HRBA to the water sector in Kenya. More can be done to ensure that all actors streamline their actions towards a national approach that supports government and the sector reforms to the extent that they are consistent with the HRBA to water and sanitation. For Government, the main issue remains, implementation and ensuring that the gains made under the water sector reforms, do not remain on paper but are translated into action.

Resources:

For more information on the Optional Protocol to the Convention on Economic, Social and Cultural Rights please see the HuriTalk Insights series no. 4: http://www.undp.org/oslocentre/flagship/insight_04_en.html