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Realization of the Right to Water in Kenya...

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MOI UNIVERSITY FACULTY OF LAW

FLB 400- RESEARCH PAPER

TOPIC: REALIZATION OF THE RIGHT TO WATER IN KENYA

BY: CHERUIYOT KIBET NEHEMIAH (LLB/10/13)

A Research Paper Submitted in partial fulfillment of the requirement for the award of Bachelor of Laws (LL.B) Degree, Moi University

SUBMITTED BEFORE: Ms MAITHYA IRENE

AUGUST, 2016

DECLARATION I, Cheruiyot Kibet Nehemiah of registration number LLB/10/13 do declare that the work presented in this research paper is original. It has not been presented in any University or other institution of learning. Where the work of other people has been used or referred to, it has been duly acknowledged.

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DEDICATION To my parents Mr Amai Moses Sawe and Mrs Sawe Lillian Matui, and to my brother and sister Mr Jacob Kipkosgey Amai and Ms Helgah Cheptanui Sawe, for their endless sacrifices and encouragement that helped me progress so far.

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ACKNOWLEDGEMENT I would like to thank God for lending an ear to all my prayers and giving me the strength and will to finish my dissertation and go through four years of campus. My deepest thanks to my supervisor, Ms Irene Maithya, for her excellent guidance during the course of the semester and working on this dissertation. To my friends Hempstone Owino, Cheruiyot Bonface, Luka Mwangi and Imbeywa Brian. Their moral support from the beginning to the end of this dissertation and through four years of campus enabled me to overcome many challenges, some which threatened to put this research paper in jeopardy.

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LIST OF ABBREVIATIONS ASALS

Arid and Semi-Arid Lands

CEDAW

Convention on Elimination of all forms of Discrimination Against Women

DLPG

Department of Provincial and Local Government

DWAF

Department of Water Affairs and Forestry

ICCPR

International Covenant on Civil and Political Rights

ICESCR

International Covenant on Economic, Social and Cultural Rights

RWSB

Regional Water Service Board

WASREB

Water Services Regulation Board

WHO

World Health Organization

WRMA

Water Resource Management Authority

WSB‟s

Water Services Boards

WSP‟s

Water Services Providers

WSTF

Water Services Trust Fund

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TABLE OF CONTENTS DECLARATION ....................................................................................................................... i DEDICATION .......................................................................................................................... ii ACKNOWLEDGEMENT ....................................................................................................... iii LIST OF ABBREVIATIONS .................................................................................................. iv CHAPTER ONE: INTRODUCTION ........................................................................................1 1.0 Introduction .................................................................... Error! Bookmark not defined. 1.1 Background ...................................................................................................................... 1 1.2 Problem Statement ........................................................................................................... 3 1.3 Research Questions .......................................................................................................... 4 1.4 Significance of the Study ................................................................................................. 4 1.5 Conceptual Clarification .................................................................................................. 5 1.6 Literature Review ............................................................................................................. 5 1.7 Methodology of Study...................................................................................................... 9 1.8 Chapter Breakdown ........................................................................................................ 10 1.9 Delineation and Limitation of the Study ........................................................................ 11 1.10 Conclusion .................................................................................................................... 11 CHAPTER TWO: WATER AS A RIGHT AND ITS RELATION TO HUMAN RIGHTS ..12 2.1 Introduction .................................................................................................................... 12 2.2 The Definition of Water Rights...................................................................................... 12 2.3 Classification of Water as a Human Right ..................................................................... 13 2.4 International Legal Framework Addressing the Right to Water .................................... 15 2.4.1 Conventions and Declarations ................................................................................. 15 2.4.2 Global Environmental Instruments.......................................................................... 18 2.5 Key aspects of the Right to Water .................................................................................. 19

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2.6 Conclusion ...................................................................................................................... 21 CHAPTER THREE: SITUATIONAL ANALYSIS OF THE RIGHT TO WATER IN KENYA....................................................................................................................................23 3.1 Introduction .................................................................................................................... 23 3.2 Legal Framework Addressing the Right to Water in Kenya .......................................... 24 3.2.1 The Constitution of Kenya 2010 ............................................................................. 24 3.2.2 The Right to water and the fourth schedule ............................................................. 26 3.2.3 The Water Act 2002 ................................................................................................ 28 3.3 Proposed Policy and Legal Framework ......................................................................... 30 3.3.1 The Draft Water Policy 2012................................................................................... 31 3.3.2 The Water Bill 2014 ................................................................................................ 32 3.4 Challenges Facing the Kenyan Water Sector ................................................................. 35 3.4.1 Pipe bursts and illegal connections.......................................................................... 35 3.4.2 Inaccurate billing and metering ............................................................................... 35 3.4.3 Vandalism ................................................................................................................ 36 3.4.4 Overcharging and Corruption .................................................................................. 36 3.4.5 Lack of Participation and access to information ..................................................... 36 3.4.6 Safety and quality .................................................................................................... 37 3.4.7 Continued Degradation of Water Catchment Areas ................................................ 37 3.4.8 Discharges to river systems ..................................................................................... 37 3.5 Conclusion ...................................................................................................................... 37 CHAPTER FOUR: A COMPARATIVE STUDY OF SOUTH AFRICA ..............................39 4.1 Introduction .................................................................................................................... 39 4.2 Legal Framework Governing the Right to Water in South Africa ................................. 40 4.2.1 The Constitution of South Africa ............................................................................ 40

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4.2.2 The Constitution of Kenya ...................................................................................... 40 4.2.3 The National Water Act........................................................................................... 41 4.2.4 The Kenyan Water Act ............................................................................................ 42 4.2.5 The Water Services Act ........................................................................................... 43 4.3 Citizen Participation and Access to Information in the Water Sector in South Africa in relation to Kenya .................................................................................................................. 44 4.3.1 Citizen Participation and Access to Information in South Africa ........................... 44 4.3.2 Citizen participation and Access to Information in Kenya ...................................... 45 4.4 Water Availability and Allocation in South Africa in relation to Kenya ....................... 46 4.4.1 Water Availability and Allocation in SA ................................................................ 46 4.4.2 Water Availability and Allocation in Kenya ........................................................... 48 4.5 Water Quality and Hygiene in SA in relation to Kenya ................................................. 49 4.5.1 Water Quality and Hygiene in SA ........................................................................... 49 4.5.2 Water Quality and Hygiene in Kenya...................................................................... 50 4.6 Conclusion ...................................................................................................................... 51 CHAPTER FIVE: CONCLUSIONS AND RECOMMENDATIONS ....................................53 5.1 Introduction .................................................................................................................... 53 5.2 Conclusions .................................................................................................................... 53 5.3 Recommendations .......................................................................................................... 55 BIBLIOGRAPHY ....................................................................................................................59

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CHAPTER ONE INTRODUCTION 1.1 Background “Freedom means the supremacy of human rights everywhere. Our support goes to those who struggle to gain those rights and keep them. Our strength is our unity of purpose. To that high concept there can be no end save victory” – Franklin Delano Roosevelt The right to water can be defined as the right to access sufficient water, with the term access implying economic accessibility. The term „sufficient‟ implies the quantity and quality of the water as is necessary to meet basic human rights.1 The right to water has been either expressly or impliedly provided for under public international and under the national laws of Kenya. The Universal Declaration for Human Rights that was adopted by the United nations General Assembly in 1948 is the leading instrument as regards to human rights, and in this instance water rights in particular. The Universal Declaration for Human Rights provides that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services….” 2 Even though „water‟ has not been included in this formulation, the use of the term „including‟ shows that the list is not all-inclusive and may include other services not expressly stated in the list. Other international statutes and Declarations also provide for the right to water. These include the 1966 International Covenant on Civil and Political rights (ICCPR)3, the 1966

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The United Nations Committee on Economic, Social and Cultural Rights, November 2002, General Comment 15, paragraph 2. 2 The Universal Declaration for Human Rights, 10th December 1948, Article 25. 3 International Covenant on Civil and Political Rights(ICCPR), 16th December 1966(entered into force 23rd March 1976).

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International Covenant on Economic, Social and Cultural Rights (ICESCR)4, the 1989 Convention on the Rights of the Child.5 The right to water has been provided for under various non-legally binding international environmental instruments. The Stockholm Declaration is one such instrument and recognizes the right to an "environment of a quality that permits a life of dignity and wellbeing."6 The Mar Del Plata Action Plan7 also recognized water as a right stating that all people have the right to drinking water in quantities and of a quality equal to their basic needs. Under Kenyan national law, the right to water and sanitation is meanwhile explicitly recognized at the highest legal level, under the Constitution of Kenya 2010, which provides that everyone has the right to clean and safe water in adequate quantities.8 It‟s also contained in Article 46 of the Water Bill of 2014. The provisions of the Water Bill are expected to enhance the legal framework for equitable access to water supply and sanitation services. Even though the right to water has been provided for both expressly and impliedly under both national and international law, in practice however many Kenyans are deprived the right to water. The right to water remains a dream for most Kenyans. A report by UNICEF and WHO in 2012 indicated that only 59% of Kenyans had access to safe water.9 Kenyans living in urban slum areas and the more marginalized communities are the most affected. Even though

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International Covenant on Economic, Social and Cultural Rights, 16th December 1966(entered into force 3rd January 1976). 5 Convention on the Rights of the Child, 20th November 1989(entered into force 2nd September 1990). 6 Principle 1: man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment…” 7 Action plan from the United Nations Water Conference held in Mar Del Plata,Argentina in 1977. 8 Constitution of Kenya 2010, Art 43(d). 9 Economics and Social Rights Center- Hakijamii, Position Paper on Violation of the Right to Water and Sanitation for Marginalized Groups in Kenya(2013).

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the Constitution recognizes the right to water, the necessary framework to achieve this has not yet been put in place. The National Water Policy and the National Water Bill are still at the draft level. The devolution of water and sanitation services to the county governments faces challenges due to the lack of hasty transfer of services to the county level 1.2 Problem Statement The problem that arises is whether the right to water has been comprehensively adhered to in Kenya. Even though there is enough legislation on the matter, the factual situation on the ground seems different. Many Kenyans have little or no access to water which is a basic human right. Many others have access to water that is not clean and may be hazardous to their health and can lead to water related diseases.10 For decades, water scarcity has been a major problem in Kenya, this arising due to factors including drought, poor management of water resources, contamination of available water, and an increase in water demand due to population growth. The government‟s lack of investment in water, especially in rural areas, has led to the growth of shortage of water.11 Rapid urbanization has pushed many urban dwellers into slums, where poor sanitation and an acute shortage of water are the order of the day. This acute water shortage means a large number of women and children in the rural arid and semi-arid areas of Kenya spend up to one third of their day fetching water. In addition to the stress arising from this gruesome work, the water gatherers are also susceptible to water-borne diseases. They are left unprotected from epidemics such as cholera which are extremely dangerous.

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Kenya Water and Sanitation Profile, USAID, March 2010. Patts MA Odira, Challenges in Water Sanitation Services Provision in Kenya (2013).

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The Kenyan system has not provided for a means of public participation and consultation in major decisions and process that may have a significant impact on the water sector. Public participation and consultation can facilitate the building of a common approach to the sector‟s transition.12 It is therefore important that the ministry of water and irrigation and all institutions in the water sector make an effort to ensure there is adequate public participation and consultation. This study aims to address this loophole in the Kenyan system and suggest ways through which the same can be addressed. 1.3 Research Questions 1. What is the right to water and what is its relation to human rights? 2. What legal framework covers the right to water, and what institutional frameworks have been put in place to ensure achievement of the same? 3. What measures has South Africa put in place to ensure the realization of the right to water? 4. What measures should Kenya put in place to ensure the realization and achievement of water rights in the country? 1.4 Significance of the Study The main aim and importance of this study is to address the issues surrounding the right to water in Kenya and to highlight how this right has not been made available for millions of Kenyans across the country. The research aims to address the issues of disparities in water rights. While looking at the Constitutional promise, I will also assess the factual situation on the ground and underline the factors that need urgent redress.

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Economic and Social Rights Centre (Hakijamii), Water and Sanitation in Kenya- Sector Position Paper, 15th July 2014.

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This study is important in clarifying the following: The purpose, nature and content of water rights, how water rights are created, how water rights operate 1.5 Conceptual Clarification The following are the definitions of key words and phrases which will be adopted for the purposes of this study. Sufficient water: Water supply for each person that is sufficient and continues for personal and domestic uses, which normally include drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene.13 Clean water: Safe water that in particular, is free from hazardous substances that could endanger human health, and whose color, odor and taste are acceptable to users.14 Affordable water and sanitation: Water and sanitation can be secured without reducing any person‟s capacity to acquire other essential goods and services, including food, housing, health services and education. Basic water requirement: The common requirements of the normal man to the use of water, for example for farming, domestic use, industrial use.15 International law and state practice: International law is the set of rules generally regarded and accepted as binding in relations between states and between nations while state practice is the general international practice by states on given matters. 1.6 Literature Review There are various books and articles that will be used as reference for the purposes of this research and a review of them has been done as follows below 13

The Committee on Economic, Social and Cultural Rights (CESCR), General Comment number 15, 2002. SIDA, David Nilsson, Realizing the Human Right to Water (2013). 15 Peter H Gleick, Basic Water Requirements for Human...