The Right to Water in Kenya

Georgina Pressdee

Little needs to be said about why access to clean water is critical in the COVID-19 crisis. WHO Africa’s guidance has emphasised the importance of washing hands regularly, with soap and running water, for at least 40 seconds, to prevent its spread.[1]The Kenyan Government has urged its citizens to follow this advice,[2] but in informal settlements, where access to water is limited, doing so is near impossible. The urgency of the situation has been emphasised by Gacheke Gachihi, coordinator of the Mathare Social Justice Centre, who has warned that “The threat of the coronavirus is a disaster for the majority of people living in settlements, who have no water, no sanitation and no basic services.”[3] The right to water has secured legal protection in Kenya, but, according to human rights defenders in Kenya, the practical reality lags far behind its legislative counterpart. The Kenyan government can and must do more to honour its legislative promise and ensure access to water for all of its citizens.

 

Admittedly, as a matter of international law, the status of access to water as a legally binding human right can be disputed. Access to water was not conventionally considered a human right.[4] There is no express reference to a right to water in the 1948 Universal Declaration of Human Rights, or in either of the 1966 International Covenants - on Civil and Political Rights, and on Economic, Social and Cultural Rights. However, in 2000, the Committee on Economic, Social and Cultural Rights adopted General Comment No. 14[5] which interprets Article 12,[6] the right to health, as inclusive of underlying determinants of health, including access to safe water. This more extensive interpretation is substantiated by the drafting history and express wording of Article 12.2, which encompasses a wide range of socio-economic factors promoting conditions which facilitate better health. Additionally, the committee adopted General Comment No. 15 in 2002.[7] In this comment, the committee underlined that the right to water was an integral part of Article11, the right to an adequate standard of living.[8] Paragraph 1 of Article 11specifies a non-exhaustive list of sub-rights which must emanate from the right to an adequate standard of living, such as adequate clothing and housing. We know this list to be non-exhaustive, from the preceding word “including”.[9] The committee’s inclusion of the right to water within Article 11 is therefore not unfounded –it is an essential element of living, let alone an adequate standard, and is substantiated by the text. General Comment No. 15 goes further than merely recognising the right to water, by defining it as the right to sufficient, safe, acceptable and physically accessible and affordable water for personal and domestic uses. Access to safe drinking water has since been recognised as an independent right by the UN General Assembly in a non-binding resolution in 2010,[10] albeit passed with 43 abstentions, and reaffirmed by Sustainable Development Goal 6.[11]

As a matter of Kenyan law, the status of the right to water is clear. It is enshrined in Article 43 of The Constitution of Kenya, 2010,[12] and has been reaffirmed by the WaterAct 2016.[13] As a matter of fact, however, the right to water[1] does not extend to many marginalised groups in Kenya, who are excluded from this right. Naomi Barasa is a human rights defender who campaigns for socio-economic rights in Kenya’s informal settlements. In a recent webinar hosted by human rights charity Peace Brigades International,[14] she explained that 60% of Kenyans are living in informal settlements - mostly in Nairobi, Mombasa and Kisumu.[15] For these Kenyans, access to water falls far below the international standard set by General Comment No.15, making the implementation of COVID-19 measures impossible. First, water is far from affordable. Barasa explained that water prices in informal settlements are extortionate because the water supply is controlled by ‘cartels’[16] which prevents access to the public water supply. This results in residents paying 5-10,[17] or even up to 50[18] times the price of water per unit than middle class households – more than consumers pay in London or New York.[19] Because of these inflated prices, expenditure represents about 20% of income for a family with two adults earning a minimum wage.[20]This is over six times greater than the 3% of household income that The United Nations Development Programme has deemed affordable.[21] Second, because of the high cost of water, these Kenyans are not able to access a sufficient quantity of water. In 2004, water use per person in Mathare Valley, Nairobi, was at 30 litres per day [22] – well below the 50-100 litres per person per day that the WHO deems necessary to ensure that most basic needs are met and few health concerns arise.[23]Third, the high cost does not even equate to accessible water. In a household survey on access to water, undertaken in 184 households across Nairobi, Mombasa, Coast, and Kisumu, 35% of respondents reported having to travel for more than half an hour to access water.[24] It is true that theKenyan Government’s obligations, under General Comment No. 15,[25] is to achieve progressively the full realisation of the right to water – it is not an obligation to facilitate the right immediately, as this may not be possible. However, the obligation of non-discrimination is of immediate effect.[26] At present, the Kenyan government is discriminating against those living in informal settlements, in favour of the middle class. In addition to the huge price disparity outlined above, private utility companies[3] are able to divert water to high-income areas during periods of water shortage.[27]

Fulfilling the human and constitutional right to water for Kenyans living in informal settlements may seem insurmountable, but it is not entirely unrealistic. To meet its Millennium Development Goal target, Kenya will need to increase the number of people with access to water by 11.6 million.[28] The Kenyan government’s current planned investment in water and sanitation of around $110 million per year[29] is insufficient to achieve this – a further $60 million per year is required.[30] Yet, Kenya loses at least 29.9 billion KES (approximately $330 million) each year due to poor sanitation.[31] Expenditure on water and sanitation would be an investment, not a sunk cost. Furthermore, it should be remembered that Kenyans have a right to affordable water, not free water. There may be some economic gain in making water affordable for more Kenyans living in informal settlements, who will purchase more water as a result, and the money saved by residents who are paying less for water could be used to invest in infrastructure. In Kibera alone, residents spend an estimated $5 million per year on water purchased from kiosks.[32] This money could be invested in extending the piped network to more residents. The second blatant hurdle to fulfilling the right to water is the limited availability of water asa resource in Kenya, with the country recognised by the UN as chronically water scarce.[33] However, better management and monitoring of water transportation and sales could reduce theprice of water, without increasing strain on the natural resource. 50% of the water supply in the majority ofKenya is lost due to illegal connections, leakages and other technical losses.[34] Much of this could be recouped with better maintenance. Additionally, two key inflators of water price in informal settlements are vendors paying bribes to officials[35] and to water utility companies to connect to the network and kiosks being categorised as commercial entities and therefore paying a tariff twice as high as the household minimum.[36] Both of these costs are shifted onto consumers. These inflators could be removed by greater scrutiny of officials and better administration by the government. The human right to water can be fulfilled for all Kenyans, but government action must be taken.

For appropriate government action to take place, Kenyans living in informal settlements must be made aware of their rights. Individuals and communities need access to information to participate in decision-making.[37] Human rights defenders, like Gacheke Gachihi and Naomi Barasa, are critical in mobilising communities to demand government action. These human rights defenders are also critical in alerting international organisations to their communities’ situations.Many of the statistics used in this article were taken from a survey conducted by the United Nations Human Rights Office of the High Commissioner. This survey would not have been possible without the cooperation of a network of 24 Social Justice Centres across Kenya.[38] These organisations, and the individuals behind them, form a crucial link to information about the situation on the ground, which can be used to shape international policy and lobby the Kenyan government. But their work is not without its risks. Gachihi has reported receiving serious threats from government supporters directed at him and his family because of his work,[39] and Barasa has warnedthat they cannot rely on security infrastructure because the informal settlements they operate in are not legally acknowledged.[40] As a result, they depend on support from organisations like Peace Brigades International, who offer practical support and protection. Human rights defenders are the key to meaningful change in Kenya, and elsewhere, and they need our support.


[1] https://www.afro.who.int/health-topics/coronavirus-covid-19/communication-material

[2] https://www.ohchr.org/EN/NewsEvents/Pages/COVID19_RighttoWaterKenya.aspx

[3] https://www.ohchr.org/EN/NewsEvents/Pages/COVID19_RighttoWaterKenya.aspx

[4] http://opiniojuris.org/2020/03/31/covid-19-symposium-covid-19-and-the-human-right-to-water-and-sanitation/

[5]http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=4slQ6QSmlBEDzFEovLCuW1AVC1NkPsgUedPlF1vfPMJ2c7ey6PAz2qaojTzDJmC0y%252B9t%252BsAtGDNzdEqA6SuP2r0w%252F6sVBGTpvTSCbiOr4XVFTqhQY65auTFbQRPWNDxL

[6] https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx

[7] https://www.unhcr.org/uk/publications/operations/49d095742/committee-economic-social-cultural-rights-general-comment-15-2002-right.html

[8] https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx

[9] https://www.ohchr.org/documents/publications/factsheet35en.pdf

[10] http://opiniojuris.org/2020/03/31/covid-19-symposium-covid-19-and-the-human-right-to-water-and-sanitation/

[11] https://sdgs.un.org/goals/goal6

[12] https://www.wipo.int/edocs/lexdocs/laws/en/ke/ke019en.pdf

[13] https://wasreb.go.ke/downloads/Water%2520Act%25202016.pdf

[14] https://peacebrigades.org.uk/webinar-1-government-and-grassroots-responses-kenya

[15] https://www.ohchr.org/EN/NewsEvents/Pages/COVID19_RighttoWaterKenya.aspx

[16] https://www.ohchr.org/EN/NewsEvents/Pages/COVID19_RighttoWaterKenya.aspx

[17] http://hdr.undp.org/en/content/human-development-report-2006#:~:text=The%2520Human%2520Development%2520Report%2520continues,billion%2520without%2520access%2520to%2520sanitation

[18] https://www.ohchr.org/EN/NewsEvents/Pages/COVID19_RighttoWaterKenya.aspx

[19] http://hdr.undp.org/en/content/human-development-report-2006#:~:text=The%2520Human%2520Development%2520Report%2520continues,billion%2520without%2520access%2520to%2520sanitation

[20] http://hdr.undp.org/en/content/human-development-report-2006#:~:text=The%2520Human%2520Development%2520Report%2520continues,billion%2520without%2520access%2520to%2520sanitation

[21]https://www.un.org/waterforlifedecade/human_right_to_water.shtml#:~:text=Article%2520I.,a%2520life%2520in%2520human%2520dignity.&text=15%2520also%2520defined%2520the%2520right,for%2520personal%2520and%2520domestic%2520uses

[22] http://hdr.undp.org/en/content/human-development-report-2006#:~:text=The%2520Human%2520Development%2520Report%2520continues,billion%2520without%2520access%2520to%2520sanitation

[23]https://www.un.org/waterforlifedecade/human_right_to_water.shtml#:~:text=Article%2520I.,a%2520life%2520in%2520human%2520dignity.&text=15%2520also%2520defined%2520the%2520right,for%2520personal%2520and%2520domestic%2520uses

[24] https://www.ohchr.org/Documents/Countries/KE/Assessment_right_water_Kenya2020.pdf

[25] https://www.unhcr.org/uk/publications/operations/49d095742/committee-economic-social-cultural-rights-general-comment-15-2002-right.html

[26] https://www.ohchr.org/documents/publications/factsheet35en.pdf

[27] http://hdr.undp.org/en/content/human-development-report-2006#:~:text=The%2520Human%2520Development%2520Report%2520continues,billion%2520without%2520access%2520to%2520sanitation

[28] http://hdr.undp.org/en/content/human-development-report-2006#:~:text=The%2520Human%2520Development%2520Report%2520continues,billion%2520without%2520access%2520to%2520sanitation

[29] http://hdr.undp.org/en/content/human-development-report-2006#:~:text=The%2520Human%2520Development%2520Report%2520continues,billion%2520without%2520access%2520to%2520sanitation

[30] http://hdr.undp.org/en/content/human-development-report-2006#:~:text=The%2520Human%2520Development%2520Report%2520continues,billion%2520without%2520access%2520to%2520sanitation

[31] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14912&LangID=E

[32] http://hdr.undp.org/en/content/human-development-report-2006#:~:text=The%2520Human%2520Development%2520Report%2520continues,billion%2520without%2520access%2520to%2520sanitation

[33] https://stud.epsilon.slu.se/15148/1/orlendo_e_b_191014.pdf

[34] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14912&LangID=E

[35] http://hdr.undp.org/en/content/human-development-report-2006#:~:text=The%2520Human%2520Development%2520Report%2520continues,billion%2520without%2520access%2520to%2520sanitation

[36] http://hdr.undp.org/en/content/human-development-report-2006#:~:text=The%2520Human%2520Development%2520Report%2520continues,billion%2520without%2520access%2520to%2520sanitation

[37] https://www.ohchr.org/documents/publications/factsheet35en.pdf

[38] https://www.ohchr.org/EN/NewsEvents/Pages/COVID19_RighttoWaterKenya.aspx

[39] https://www.irishtimes.com/news/world/africa/human-rights-work-being-criminalised-in-kenya-says-activist-1.2622918

[40] https://peacebrigades.org.uk/naomi-barasa-kenya