Brief Summary Report of Key Issues Raised by Professor Anne Hellum, Doctor Ellen Sithole and Loreen Mupasiri in Presentations for the Launch of the Book “Water Is Life: Women’s Human Rights in National and Local Water Governance in Southern and Eastern A

Presented by Elizabeth Rutsate-Lwanda

Introduction

At the book launch event held at the Australian Embassy on 17 November, 2015, presentations were made by Professor Anne Hellum from the University of Oslo; Professor Patricia Kameri-Mbote, Dean of the Faculty of Law at the University of Nairobi; Dr. Ellen Sithole, Deputy Chairperson of the Zimbabwe Human Rights Commission; Shangwa Mavesera, Town Clerk, Bindura Town Council; Loreen Mupasiri from CHRA and Kudzai Chatiza, Director, Development Governance Institute. Justice Chinhengo’s presentation was made on his behalf by Fadzai Kuipa, Legal Manager at Africa Institute of Mediation and Arbitration (AIMA). While Elizabeth Rutsate reported on the presentations by Professor Hellum, Doctor Sithole and Loreen Mupasiri, the other Rapporteur, Fadzai Mukonoweshuro reported on those by Professor Kameri-Mbote, Justice Chinhengo, Mr Mavesera and Mr. Chatiza. As such, this report compiled by Elizabeth Rutsate focuses on three of the seven speakers as earlier mentioned. Two were academics while one was from civil society working on mobilizing communities to demand efficient service delivery that includes a clean municipal water supply and sanitation as well as claiming their rights vis-à-vis transparency and accountability from local authorities, in this case City of Harare.

Professor Anne Hellum

From Professor Anne Hellum’s presentation, four key issues she raised were captured namely that;

  1. Access to land and water enable African women to play a crucial role in the economic and food security of households and as such is key to national development. Women, as shown by the case studies in the Water Book, bear primary responsibility for fetching, storing, promoting and managing water for household, hygiene and food production purposes in urban, peri-urban and rural areas. It was to be noted that Africans spend approximately 40 billion hours every day walking to collect water. Of particular concern was the fact that of that work, women carry 2/3 of the burden emanating from water collection creating a situation whereby the realization of the right to safe, available and affordable water for personal, domestic and livelihood uses, is particularly important for women. Nevertheless, this increased burden on women vis-à-vis water collection is hardly ever acknowledged in any way in existing laws and policies. In other words, there is lack of engendering of the laws and policies in recognition of the gendered water collection role peculiar to women.
  2. The research findings in the four countries point to women as family providers who use water for essential reproductive and productive activities in rural, peri-urban and urban areas. Taking women’s multiple water uses as a starting point, the research findings show that there is no clear boundary between productive and domestic water uses that include:

    1. Water for provision of care and hygiene for children, sick and elderly family members
    2. Water to grow family food through irrigation-based gardening
    3. Water which is necessary to provide cash to buy food and pay school-fees through sale of homemade products like vegetables, crafts and food

    The right to water is embedded in various regional and international conventions1 as well as the constitutions of the four countries that were the subject of study. Hence from a gender perspective the right to water is both a right in and of itself and a condition for the realization of other rights that are embedded in international and regional human rights conventions and national constitutions such as the;

    • right to life;
    • right to food;
    • right to health;
    • right to education;
    • right to participation and;
    • right to gender equality
  3. Women within vulnerable groups, who according to international law should be given priority, are often situated at the bottom of the water hierarchy. These are women with disabilities, elderly women, displaced women and farm worker women and their children. Gender-equal participation in water governance is, according to international, regional and national laws and water policies in these four countries, mandatory, to ensure the realization of the right to water for all and yet most of the water governance systems, laws and policies in the four countries lack a gender perspective vis-à-vis the right to water which is essential in strengthening basic rights for women and children. In other words, most of the water governance systems in place lack structures that make them accountable to the women water users on the ground as well as insisting on women representatives’ participation at all levels of governance. This is a regrettable situation considering that a gender perspective on the right to water is important in that it strengthens these basic rights, not only for women but also for women’s family dependents; most importantly children. In the absence of such an essential gender perspective, international and national state and non-state actors who step in to assist often struggle to translate abstract legal principles, like the human right to water, into concrete and effective measures on the ground.

    All the above is happening against a scenario whereby an important gap-filling role is being played by community based water governance systems in urban, peri-urban and rural areas in the four countries. In accessing water for personal, domestic and livelihood uses, women rely on a plurality of institutions ranging from customary water governance systems and local government institutions to humanitarian agencies, NGOs, and private water vendors. In most cases these community based water governance systems were found to play a more important role than state managed institutions. In Zimbabwe, the Shona proverb “Water is Life” which entails a duty to share water for livelihood purposes, was invoked not only by traditional leaders in rural and peri-urban areas but also by urban dwellers digging shallow wells in Harare’s high density suburbs to fill in the gap occasioned by lack of a regular and adequate municipal water supply.

  4. In summary, Professor Hellum stated that the research findings had shown that the right to equal and meaningful participation in water governance is inhibited by the following factors:
    • Gender stereotypes embedded in customary norms that assign women an inferior position in comparison to men have a negative effect on women's actual influence on water governance;
    • There is a lack of regulations requiring that a certain number of women participate at all levels of water governance and also ensuring that they are empowered through knowledge about women’s right to affordable water for domestic and livelihood uses;
    • As water is becoming scarce, water governance has become a site of political contestation. In many places the highly polarized and often hostile male-dominated political climate represents a barrier to women's participation both as decision-makers and as users;
    • Furthermore, most water governance systems lack structures that make them accountable to the women water users on the ground.
  5. Basing her conclusion on findings from the four empirical case studies in the Water Book, Professor Hellum indicated how on one hand, the dynamic international, national and legal developments referred to above gave one guarded reasons for optimism while on the other hand, with regard to the implementation of the right to water and sanitation as well as the right to gender equal participation in water governance, an urgent need for action was required. This was due to the fact that the state, which is the main duty bearer under international and national constitutional law, has to a large extent, failed in its obligation to respect, protect and fulfill the right to water and sanitation. In practice, the state has failed in its duty to make safe, clean and affordable water available to all its citizens on a continuous basis.

Dr. Ellen Sithole

In her presentation, Dr. Ellen Sithole spoke on the regulatory and policy frameworks governing the right to water in Zimbabwe. Her presentation brought out 4 key issues namely (a) identification of the key law and policy documents; (b) implementation structure for the legal and policy framework; (c) legal and policy participation and access requirements and (d) conclusion. I have dealt with the elements of her discussion as interconnected and not strictly divorced from each other such that where I summarize on each of the key law and policy documents and their content, I have also included issues concerning the legal and policy participatory and access requirements as well as the implementation structure.

Identification of Key Law and Policy Documents, Implementation Structure and the Legal and Policy Participation and Access Requirements

Dr. Sithole discussed the above as summarized below;

  1. The 2013 Constitution of Zimbabwe
    • Being located within Zimbabwe’s supreme law, section 77 of the 2013 Zimbabwe Constitution was cited as the key provision. It provides that, “Every person has the right to; (a) safe, clean and potable water and (b) sufficient food;”
    • It now encompasses economic, social and cultural rights inclusive of the right to water and food, unlike in the old Constitution;
  2. The Water Act Chapter 20:24
    • The Water Act Chapter 20:24 which is the main legislation on water vests all water in Zimbabwe in the President (section 3) and makes it an offence to use water for purposes other than primary purposes without a permit;
    • Responsibility for implementation is shared between the Minister dealing with Water, the Zimbabwe National Water Authority (ZINWA), Catchment and sub-Catchment Councils as well as urban and rural district councils;
    • While the Minister is required to give directions on how members of Catchment and sub-Catchment Councils are to be elected; there are no specific legal provisions that compel the Minister to take gender considerations into account.
    • Of particular significance are sub-sections 6(2)(c) and 6(2)(d) which provide respectively that the Minister has a duty to “(c) encourage participation by consumers in all sectors...and catchment councils in the development, exploitation and distribution of water resources” and “(d) secure the provision of affordable water to consumers in under-privileged communities;”
    • The other shortcoming therefore is that while the Minister under the Water Act should take into account access needs of the poor, there is no definition provided in the Act of “under-privileged communities.”
  3. The Urban Councils Act Chapter 29:15
    • Of particular significance to the realization of the right to water is Part XIII and section 303 of the Urban Councils Act inclusive of Bye-Laws for Regulating the Supply and Use of Water within the Municipality of Salisbury, Government Notice No. 164 of 1913 (as amended from time to time);
    • The Act which must be applied in conjunction with the Water Act and any other relevant legislation, regulates the City of Harare’s water governance framework (particularly in Part XIII and section 219 of the 1913 Bye-Laws);
    • Part XIII empowers urban councils to compel owners of land within their areas who are not connected to their municipal water supply to do so for purposes of accessing water for drinking, domestic and sanitary purposes (section 184);
    • Section 186(1) allows urban councils to prohibit the construction of buildings and excavation of soil ‘next to, under or near a water main,’2
    • Section 187 gives urban councils power to introduce water rationing and levy surcharges in an emergency;
  4. The 2012 National Water Policy;
    • The National Water Policy makes no reference to section 77 of the 2013 Zimbabwe Constitution since it came into operation in 2012 prior to the Constitution.
    • It however commits the Government of Zimbabwe to respect international, regional and national principles and commitments that include but are not limited to; (a) UNCESCR General Comment 15 of 2002 on the right to water; (b) the UN MDGs expiring in 2015 and the Sustainable Development Goals running from 2016 to 2030; (c) the UNGA Resolution A64/292 of 28 July, 2010, on the international right to safe and clean water and sanitation (d) the SADC Regional Water Policy of 2005 in which basic human needs are to take priority over any other uses of water;
    • Although the National Water Policy acknowledges the human right to water by stating that “Water for primary needs is a right for all Zimbabweans;” there is no clear definition of the human right to water and its implication for Zimbabwean water laws and policies;
    • The National Water Policy attempts to deal with the challenge of access to water by poor urban residents by suggesting access to primary water needs based on lifeline tariffs as well as supplying free life saving water per household of 10 cubic metres (10 000 litres) per month only in cases where people cannot afford to pay;
    • Rather than engendering the right to water, the National Water Policy merely adds women to the existing concern for equity in the water sector through proposing inadequate quotas for women on Catchment, sub-Catchment Councils and the ZINWA Board that are combined with those of other marginalized groups (30% of positions reserved for women and the youth; at least 3 board members on the ZINWA Board will be women, youth or worker representatives). This is despite section 17 of the Constitution on Gender Balance providing that;
      (1) The State must promote full gender balance in Zimbabwean society, and in particular— (a) The State must promote the full participation of women in all spheres of Zimbabwean society on the basis of equality with men; (b) the State must take all measures, including legislative measures, needed to ensure that— (i) both genders are equally represented in all institutions and agencies of government at every level; and (ii) women constitute at least half the membership of all Commissions and other elective and appointed governmental bodies established by or under this Constitution or any Act of Parliament; (c) the State and all institutions and agencies of government at every level must take practical measures to ensure that women have access to resources, including land, on the basis of equality with men. (2) The State must take positive measures to rectify gender discrimination and imbalances resulting from past practices and policies.

      Section 80 of the Constitution on the Rights of Women also provides that;

      Every woman has full and equal dignity of the person with men and this includes equal opportunities in political, economic and social activities…(3) All laws, customs, traditions and cultural practices that infringe the rights of women conferred by this Constitution are void to the extent of the infringement.
  5. Conclusion
    In her conclusion based on the research findings made in Zimbabwe, Dr. Sithole stated that Zimbabwe’s legal and policy framework does not adequately provide for the human right to water in a context of gender equality in that;
    • The Water Act, the Urban Councils Act and other legislation that provide for provision and use of water are not yet aligned to the constitutionally enshrined human right to water and equality frameworks inclusive of gender equality;
    • The National Water Policy lacks adequate guidelines on how the national Government, local authorities and other service providers should promote, protect and fulfil the human right to water in a context of gender equality.

Loreen Mupasiri Sani

Loreen Mupasiri’s presentation was entitled “Addressing the Economic Constraints to the Right to Water at a Local Level.” She covered the following four key issues;

Definition of the Right to Water;
Economic Constraints to Realizing the Right to Water in Harare
Challenges Faced in collecting revenue;
Addressing Financial Resource Constraints.

  1. Definition of the Right to Water

    With reference to section 77 of the Zimbabwe Constitution and the UNCESCR General Comment 15 of 2002 on the right to water; Loreen defined the right to water through the deconstruction of the normative content of the right to water under the sub-topics, (a) sufficiency component; (b) safety component; (c) cultural acceptability component; (d) physical acceptability component and (e) affordability component. In other words, the right to water entitles everyone to sufficient, safe, culturally acceptable, physically accessible and affordable water for personal and domestic uses without discrimination. Loreen reiterated the critical point that all water and sanitation facilities and services must be culturally appropriate and sensitive to gender lifestyle and privacy requirements.
  2. Economic Constraints to Realizing the Right to Water in Harare

    The constraints encountered were attributed to aged and inadequate infrastructure (expensive to maintain); deteriorating raw water quality that is expensive to treat (costs US$3 million per month); non revenue water whereby 56% of treated water is lost physically and commercially; poor revenue inflows through collection inefficiency (only collecting 50% of potential revenue); debtors accumulating ever increasing arrears amounting to approximately US$100 million and Central Government only allocating 1.2 % of national budget to water and sanitation.
  3. Challenges Faced in Collecting Revenue

    The challenges which inhibit efficient revenue collection were given as malfunctioning water meters that result in either over or under billing; lack of consumer accountability as a large number of consumers display a lack of willingness to pay for services rendered; water wastage; inability to cope with meter replacement; oversized meters; illegal water connections and a bloated billing workforce.
  4. Addressing Financial Resource Constraints

    Loreen proposed firstly for the localization of the Global Expanded Water Monitoring Initiative Goal 6 on preserving and restoring wetlands; treatment of waste water to reduce pollution and ultimately the US$3 million monthly water purification costs Harare is facing and the promotion of sustainable urban agricultural practices so as to reduce eutrophication. Secondly, she called for the improvement of the water governance framework which will see the arresting of corruption (issuing of fake receipts and the taking of water reconnection bribes by council officials); improving the billing system, building relations between council officials and rate payers, an oversight role has to be played by elected council officials (accounts held by local authority have to be publicly known. Further Loreen suggested that the water governance framework may be further improved through domestic resource mobilization; arresting illicit financial flows in the water sector; ensuring tax justice and participatory budgeting; transparent tender procedures and the addressing of inflated salary scales; the reduction of non-revenue water (720 mega litres are currently being produced by Harare Water per day of which 403.2 mega litres are lost) and the promotion of payment plans agreed between the City Council and rate payers who owe them money.

Conclusion

What I noted from the presentations made by the academics, activists from civil society as well as officials from local authorities such as Shangwa Mavesera, the Bindura Town Clerk as well as the ensuing debate was the traditional underlying conflicts between taking the human rights based approach to water supply and management and the integrated water resources management (IWRM) framework. While the human rights based approach to water management primarily views water as a social good; the IWRM approach views water as a public good that has a social and economic value in all its competing uses where the focus is on cost recovery and economic efficiency. Most of the UN agencies which consider access to water as a human right prioritize issues such as the World Health Organization’s Guidelines on Drinking Water where everyone is entitled to a basic minimum supply of drinking water amounting to 20 litres per day.3 There is also a focus on ensuring that poor and marginalized groups within any society who cannot afford to pay for water are guaranteed access to it through state subsidies and/or a basic minimum supply of free water. What has to be emphasized is that the human right to water does not imply a right to free water but rather access to water that is safe, clean and affordable while making provisions for the poor and marginalized who may totally fail to pay for water.

On the other hand the IWRM strategy whose focus is on water as an economic good has been popular with institutions such as the World Bank which has given technical support to water reform programmes in sub-Saharan Africa since the 1990s4 where the emphasis has been on economic efficiency, decentralization and cost recovery. Nevertheless, the four Dublin Water Principles which have been incorporated within the IWRM framework has principles 2 and 3 demanding that; “water resources development and management should be based on a participatory approach, involving all relevant stakeholders,” and that as “women play a central role in the provision, management and safeguarding of water,” their role has to be acknowledged. IWRM has provisions which call for a gender sensitive approach to water supply and management. The common practice on the ground however, has been to ignore any such gender sensitive requirements and proceed to promulgate laws and policies that lack a gender perspective such as the Water Act in Zimbabwe, which incidentally came about after the World Bank supported water reforms beginning in the 1990s up to 2012 when it also technically supported the drafting of the National Water Policy.

A very important and undeniable fact that emerged from discussions between and among presenters and guests5 at the book launch is that the Water Book is a great starting point paving the way to future dialogue and active debates on how the various competing interests in society vis-à-vis water supply and management can be balanced. How can access to safe and clean water that is affordable, in adequate amounts and supplied regularly be assured to all6 as a human right in an environment which also calls for both economic efficiency and sustainable development?7

Compiled by Elizabeth Rutsate

(PhD Candidate, SEARCWL- University of Zimbabwe)

1 The UN Committee on Economic Social and Cultural Rights in General Comment 15 of 2002 found the right to be implicitly embedded within Articles 11 & 12 of the International Covenant Economic Social and Cultural Rights (ICESCR) on the right to an adequate standard of living and enjoyment of the highest attainable standard of physical and mental health. In some jurisdictions that have neither ratified the ICESCR nor have right to water provisions in their constitutions; arguments for the right to water have been based on Art 6 of the International Covenant on Civil and Political Rights on the inherent right to life. There is also the UN General Assembly Resolution A64/292 of 28 July, 2010 on the international right to safe and clean drinking water and sanitation. International right to water provisions focusing on vulnerable and marginalized groups are found within Article 14 of CEDAW focusing on rural women’s access to water; Art 15 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa on women’s right to water; Art 24 of the Convention on Rights of the Child and Art 14 of the African Charter on the Rights and Welfare of the Child.
2 This provision is the one used by urban councils to prohibit the digging of shallow unprotected wells and boreholes next to houses in high density areas which have small yards.
3 WHO has however recommended that between 50 and 100 litres of water per person per day are needed to ensure that the most basic needs are met and few health concerns arise.
4 The four countries under study underwent these water reform programmes which saw the enactment of new water regulations and policies.
5 These came from diverse backgrounds.
6 Both rich and poor whereby those with higher incomes may be called upon to subsidize the cost of supplying low tariff or free drinking water to the poor and marginalized in society through charging the wealthy higher and punitive water tariffs for water used to irrigate the perennially green lawns and filling big swimming pools.
7 Sustainable development was defined in the Brundtland Commission Report, “Our Common Future”, in preparation for the 1992 Earth Summit (UNCED) as “development which meets the needs of the present without compromising the ability of future generations to meet their own needs…” (WCED 1987:43)