CONSTITUTION WATCH 13/2015
[26th June 2015]
The Constitutional Right to Water
Since time immemorial it has been acknowledged that water is important for people to lead their lives in human dignity. Water is a prerequisite for the realisation of other fundamental human rights too, like the right to health and the right to a safe and clean environment.
The right to water has been recognised in a wide range of international treaties, declarations and in a number of national constitutions. For instance, Article 14(2) of the Convention on the Elimination of All Forms of Discrimination Against Women and the constitution of South Africa.
The subject is topical as a Water Resources and Infrastructure Investment Conference attended by 300 government and investment delegates from different countries is now taking place in Harare. Vice-President Mnangagwa opened the conference and deplored water shortages, the fact that water was not available to the vulnerable in our society that women and children in poor communities suffered most having to walk long distances in search of water, and the high incidence of disease caused by lack of or contaminated water.
What the Constitution says about the Right to Water
The current Constitution of Zimbabwe in its Declaration of Rights enshrines socio-economic rights, the so-called second generation rights, and among them is the right to water. According to section 77:
“Every person has a right to – safe, clean and potable water……
and the State must take reasonable legislative and other measures, within the limits of the resources available to it , to achieve the progressive realisation of this right.”
Enshrining the right to water in the Declaration of Rights is a welcome development since the Water Act and other legislation dealing with water did not provide in specific terms for a right to water. The inclusion of the right to water in the Declaration of Rights entails that the right is justiciable, i.e. it can be enforced by the courts.
Interpretation of the right
Section 46 of the constitution sets out guiding principles on how courts must interpret constitutional rights, including the right to water. According to the section, when interpreting the right a court:
- must give full effect to the right. In other words, the right must be interpreted widely rather than narrowly,
- must take into account international law and all treaties and conventions to which Zimbabwe is a party, and
- may consider relevant foreign law, including court decisions of other countries.
To understand the nature of the right to water, one must understand the nature of the obligations imposed by it. Constitutional rights impose both negative obligations upon the State [in the case of the right to water, this means the State must not deliberately limit the right] and positive obligations [i.e. the State must fulfil, promote and protect the right].
Since the Constitution was promulgated there has been only one case dealing with the right to water [Mushoriwa v City of Harare, decided in 2013]. The learned judge did not canvas the content and scope of the right but rather dealt with only one negative obligation of the right: he said it was a violation of the right for the City of Harare to disconnect water without a court order. A South African court in a similar case came to the same conclusion.
In international law the UN Committee on Economic, Social and Cultural Rights, General Comment 15  gives useful guidance on how the right to water is to be interpreted. According to the comment, while adequacy of water required for the right may vary according to different conditions, there are certain minimum standards that cannot be varied:
- the water supply for each person must be sufficient and continuous for personal and domestic uses [availability],
- the water must be safe; that means, amongst other things, that it should be of acceptable colour, odour and taste [quality], and
- the water must be accessible to everyone without discrimination [accessibility], and accessibility includes physical, economic and informational accessibility.
Limitation of the Constitutional Right to Water
The right to water, like other socio-economic rights in the Zimbabwean Constitution, is subject to two limitations.
Firstly section 77 states that the State must take measures to implement the right to water, but only “within the limits of the resources available to it”. In South Africa, where the constitution has a similar provision, the courts have interpreted this as follows:
In assessing the reasonableness of a government programme for implementing a socio-economic right, a court will not enquire whether other more desirable or favourable measures could have been adopted or whether public money could have been better spent. Rather the court will decide reasonableness on a case by case basis. The courts will avoid encroaching too far into issues of governmental policy, in line with the concept of separation of powers.
Legal, administrative; operational and financial hurdles to implementing the right should be examined and where possible lowered over time. The right need not be implemented immediately but the state must nevertheless take measures that result in continuous progress in the fulfilment of the right, and there must be benchmarks that show this progress.
The State is not required to do more than its resources permit it to do, but it has a duty to ensure the widest possible enjoyment of the right under the prevailing circumstances.
Secondly: the right to water is subject to section 86 of the Constitution which allows most rights in the Declaration of Rights to be limited, so long as the limitation is “fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom”.
The State bears the burden of proving that any limitation is fair, reasonable, necessary, etc. Because the right to water is such an essential right, it would be difficult for the Sate to prove any limitation is justifiable.
Zimbabwe Statute Law on Provision of Water
Zimbabwe statute law has long recognised the importance of the right to water and the duty of the State and local authorities to provide their people with adequate water.
Section 64(1) of the Public Health Act:
Every local authority, when required to do so by the Minister, shall provide and maintain, or cause to be provided and maintained as far as may be reasonably possible, a sufficient supply of wholesome water for drinking and domestic purposes, whether such supplies be derived from sources within or beyond its district, and for such purposes it may purchase or otherwise acquire any land, water works, springs, fountains, water rights and premises, or rights incidental thereto, within or outside its district, and may construct, equip and maintain any works necessary for collecting, pumping or storing water.
Section 66 of the same Act:
All water works vested in any local authority shall be maintained by the local authority in a condition for the effective distribution of a supply of pure water for drinking and domestic purposes.
And ZINWA the National Water Authority is also charged with supplying people with water.
Section 5 of the Zimbabwe National Water Authority Act (Functions of ZINWA):
- to exploit, conserve and manage the water resources of Zimbabwe with the object of—
- securing equitable accessibility and efficient allocation, distribution, use and development; and
- providing, in both the short and the long term, adequate water on a cost effective basis; and
- to promote an equitable, efficient and sustainable allocation and distribution of water resources; and
- to encourage and assist local authorities in the discharge of their functions under the Rural District Councils Act [Chapter 29:13] and the Urban Councils Act [Chapter 29:15] with regard to the development and management of water resources in areas under their jurisdiction and in particular, the provision of potable water and the disposal of waste water.
The right to water is adequately protected in the Zimbabwean Constitution and in statute law. It is up to the government and the local authorities to give practical effect to the basic human right to water.
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