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Statement by the United Nations Special Rapporteur on the human right to water and sanitation (Visit to Kenya, 22-28 July 2014)

Nairobi, 28 July 2014

Maji ni uhai (Water is life)
Afya bora (Good health)

From 22-28 July 2014, I conducted an official country visit to Kenya, aiming to assess the way in which the country is realizing the human rights to water and sanitation for all.

I would like to begin by thanking the Government of Kenya for the invitation to visit the country. During the mission I met with Government and county-level authorities, the Kenya National Commission on Human Rights, civil society organisations and the international community. I also visited communities in Kibera informal settlement in Nairobi, Kisumu county (Kisumu city and Nyango sub-county), Homa Bay county (Kanyadhiang), and Turkana county (Lodwar city, Lolupe). I talked to community leaders, school pupils, teachers, water providers and health practitioners. I am grateful to everyone who assisted me in better understanding the progress made, but equally the outstanding challenges in realizing the human rights to water and sanitation in Kenya. I would like to also thank the UN Country Team – especially the Office of the High Commissioner for Human Rights (OHCHR) and UNICEF - for their support to this mission.

The situation of access to water and sanitation

Access to improved water sources in Kenya is enjoyed by 62 percent of the country’s population - this includes water piped onto premises reaching 20 percent. Access to improved sanitation is the reality for 30 percent of the population (31 percent in urban areas, 29 percent in rural areas). Thirteen percent of the national population is estimated to practice open defecation. At the current pace, Kenya would reach the Millennium Development Goals (MDGs) target on sanitation only in 2090. Realizing the human right to sanitation would require additional efforts. However these averages mask enormous inequalities that persist between formal and informal settlements, as well as between rural and urban areas (in the former access to improved water sources is of 55%, whereas in urban areas it reaches 82%) and across wealth quintiles. Rates of access also vary enormously between counties – whereas the rate of open defecation in Turkana is 82.1%, it is “only” 0.2% in Nyandarua.

The Government of Kenya has ratified relevant international human rights treaties, as the International Covenant on Economic, Social and Cultural Rights and the Convention on the rights of the Child and has therefore legal obligations to take concrete and deliberate steps to ensure the progressive realization of the human rights to water and sanitation. This means that every individual in the country is entitled to, having the authorities take measures to ensure, as soon as possible, access to water and adequate sanitation that are accessible, available, affordable, acceptable and safe in all spheres of life. The realization of these rights also requires ensuring access to adequate and affordable hygiene practices, including hand washing and menstrual hygiene management. Effective measures have to be taken in order to ensure an adequate disposal and treatment of human waste. Even in cases of delegation of water and sanitation service provisions to third parties – either private or public companies - government is obligated to regulate the activities of those institutions to ensure that all aspects of the human rights are guaranteed. Furthermore, the State has an obligation to progressively eliminate any types of inequalities in access to water and sanitation.

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Let me now analyse some of the concrete challenges I identified during my mission:

Affordability of water and sanitation services

During my interactions with many individuals living in informal settlements or otherwise purchasing water from kiosks or informal vendors, I observed that the poor pay more to buy minimum quantities of water than those who are connected to the water network. The latter tend to be better off as they can afford the often expensive connection fee. Despite the Tariff Guidelines stating that water kiosks should not charge significantly higher than the amount paid by those using household connections, I did not see these guidelines being followed in unregulated water kiosks. I saw 20 liter jerricans of water being sold for 5 KES in informal settlements in Nairobi. This is in spite of the fact that approved rate has been set at 2 KES per 20 litres by the Athi Water Services Board which is responsible for water provision in Nairobi. In very remote areas, 20 liters of water at water points are even sold for 10 KES. This is obviously unaffordable for many people, who will have to either limit their water consumption to a level dangerous to their health and well-being or lead them to compromising their access to other needs protected by human rights, as medicine or food.

It is urgent that the Government of Kenya implements the recommendation made by the UN Committee on Economic, Social and Cultural Rights in 2010 to control “prices charged by private services and water kiosks”. I hence call for immediate measures to monitor and enforce the official tariffs for water kiosks and on the Government to correct the injustice that the poorest of the poor suffer in this country, being forced to pay unaffordable prices for water.

Menstrual Hygiene Management

Menstrual hygiene management that ensures privacy and human dignity is an important but often forgotten component of human rights to water and sanitation. Many women I met with shared with me stories on how difficult it is to reconcile their menstruation days with attending school or working. A small pack of sanitary pads in Kenya costs 80 KES in average – women in informal settlements and girls in poor communities all said they cannot afford them and therefore use a piece of cloth instead. In water scarce areas or in slums where water is extremely expensive, reusable sanitary napkins are not a realistic solution as they cannot be washed. Without adequate menstrual hygiene management girls are often simply forced to miss 5 school days a month. While discussing issues related to water and sanitation with girls in a remote area in Kanyadhiang I asked them what they wanted most. One of them immediately said “I want one more pair of panties because I only have one and I need to wash them daily. And I want sanitary napkins”. I would like to thank her for her courage in sharing her difficulties to manage menstrual hygiene and live her menstruation in dignity. In Turkana – the poorest county in the country - I saw a positive effort where the county government, provides sanitary pads to secondary school girls. I encourage all counties to adopt similar measures and to have a specific budget line for menstrual hygiene in their county budgets.

Marginalized and excluded persons

- Persons living in rural areas

Inequalities in access to water in urban and rural areas are significant. In a very remote area I visited in Turkana, the distance to fetch water can be as long as 25km. An image I take with me from this mission is that of mainly women and children carrying yellow water jerricans in every place I visited or crossed. Water kiosks in rural areas are an acceptable interim solution, but as I said earlier there is a systematic pattern of charging more to the poor than the rich, as they are not connected to piped connections or they live in more remote areas.

According to the WHO-UNICEF Joint Monitoring Programme for Water Supply and Sanitation figures comparing access on urban - rural lines, access to sanitation is equally limited both in urban and rural areas. However, among rural areas, very remote areas are further marginalized.

- People living in informal settlements

During my mission I visited Kibera informal settlement in Nairobi to see a sanitation project by the Umande Trust and UNICEF. This project aims at installing communal toilets, associated with the production of biogas for cooking purposes.

Despite efforts by civil society together with donors and by the Water Services Board, the communal sanitation facilities only cover about 20 percent of the residents in the slum. Furthermore, waiting lines at peak hours – in the morning and in the evening – are very long. Moreover, I observed many tied plastic bags in the open ditch as a sign of continuing practice of “flying toilets”. This is not only a denial of dignity and the right to sanitation, but a serious public health concern. When talking with women and girls in Kibera, many expressed their fears of being victims of violence, including sexual violence, when using public restrooms at night.

The 2014 Report of WHO-UNICEF Joint Monitoring Programme for Water Supply and Sanitation reveals disparities inside settlements. In informal settlements in Mombasa, open defecation is practised exclusively by the poor while almost 70 percent of the better off there use flush toilets. A communal eco-toilet I visited in Kibera, for instance, charges 5 KES to use the facility. Such facilities are a great intermediate solution for high-density residential areas, however, much more targeted efforts by the Government are needed to ensure affordable, accessible and safe sanitation. In particular, this requires urgent efforts by the government to ensure that residents are supported to establish toilets (whether flush toilets or latrines of adequate quality) in or next to their homes. Where residents rent homes from structure owners, the state must enforce the laws which require those renting out structures provide access to toilets that can be accessed at all times and without risk of harm.

The study undertaken by the Ministry of Health with the World Bank giving a snapshot of the situation of access to sanitation in each county is a very welcome initiative. I encourage the Government to continue this exercise in the upcoming years, while undertaking one also for water and further disaggregating data according to population groups in order to highlight patterns of exclusion and discrimination, and to adopt affirmative action measures to support minorities and marginalised groups, as prescribed by the Constitution.

Maximum available resources and budgeting for the rights to water and sanitation

Kenya has the obligation to progressively achieve the realization of the human rights to water and sanitation, using the maximum available resources in a non-discriminatory manner. The national and county level budgets must hence have specific allocations or budget lines for water, but also for sanitation and hygiene – including menstrual hygiene management. I was informed that about 4 per cent of national budget has been allocated for water and sewerage – but this includes all water-related activities such as water resource management and water for tourism, industry and other non-domestic uses. For the fiscal year 2013/2014, only three counties had adequate funding available to implement planned sanitation activities and 18 counties had no dedicated fiscal line for sanitation. An adequate financial allocation for water, sanitation and hygiene is indispensable to ensure the progressive realization of these rights.

In Turkana county, over 80 percent of the population practice open defecation. This absence of sanitation is causing water-borne diseases including cholera outbreaks. In addition, according to a recent study by the Ministry of Public Health with support from World Bank, Turkana county loses 1.1 billion KES each year due to poor sanitation because it loses access time, premature death, health care costs and productivity among other losses. For the first time, the county budget includes a specific allocation for sanitation. However, despite the huge losses caused by lack of sanitation, only 0.05 percent of the budget has been allocated to sanitation.

The benefits of investing in water and sanitation are particularly evident in improved health. Such investment averts illnesses such as diarrhoea, reducing child mortality, and increasing adults’ productivity and children’s attendance at school. As of 2012, 10 percent of under-five child mortality (73 per 1,000 live births) in the country was still attributed to diarrhea. According to a recent study by the World Bank, Kenya loses at least 29.6 billion KES (approximately 330 million USD) every year due to poor sanitation. Aside from monetary benefits, there are further water and sanitation has other positive impacts on economic and sustainable development, such as dignity gained, progress towards realizing gender equality, the avoidance of environmental degradation, and, where efforts are made to prioritize access for disadvantaged individuals and groups, the elimination of inequalities.

Sustainability

Sustainability is a fundamental human rights principle essential for realizing the human rights to water and sanitation. Once services and facilities have been improved, the positive change must be maintained and slippages or retrogression must be avoided. Unfortunately during my mission, I observed several instances of interventions by the government and/ or donors where toilets or water deposits were built, but which were no longer operating. In Kisumu I saw abandoned toilets in a school. I saw water basins without taps and soap. This scenario repeated itself in other counties and equally in informal settlements. In several places I visited, where important interventions in the area of water and sanitation had taken place –often supported by donors some time ago - people complained about lack of investment in operation and maintenance and some of these structures were not operational anymore. UN Water suggests that 75% of investment in water and sanitation should go to operation and maintenance – and county level governments should seriously consider significant budget allocations for such purposes. Donors should also factor such expenses into the projects they finance.

The level of water lost due to illegal connections, leakages and other technical losses is 50 % in the majority of the country. This is a serious concern in a water scarce country like Kenya, and it obviously also threatens sustainability – both economic and environmental. More efforts have to be deployed in order to further decrease these losses, including through targeted investments for operation and maintenance. Furthermore the Government should increase rainwater harvesting and storage capacities.

Legal and policy frameworks

I wish to welcome the explicit recognition of the human rights to water and sanitation in the 2010 Kenyan Constitution. Its article 43 provides that every person has the right “to reasonable standards of sanitation” and the right “to clean and safe water in adequate quantities”. Such an explicit recognition is a first crucial step for realizing these human rights, and an unquestionable sign of commitment to realize these rights for all. This provision should be read in conjunction with other standards set out in the Constitution, namely article 56 (e), which calls for “affirmative action programmes and policies designed to ensure that minorities and marginalised groups […] have reasonable access to water, health services and infrastructure.”

Furthermore, Kenya’s Constitution calls for devolution of State functions – including water and sanitation provision - from the national level to the 47 county governments. The intention of devolution, as stated in the Constitution, is to protect and promote the rights of marginalized communities. While visiting three different counties, I observed how county-level officials are closer and better aware of the challenges and barriers to ensuring sanitation and water for all. However I could also observe the difficulties county governments are facing as they take over their responsibilities and fully promote the realization of the rights to water and sanitation.

The rights to water and sanitation need to be translated into laws, policies, and budgeting. Under the 2014 Water Bill, water and sanitation are restated as human rights, and water and sewerage services are proposed to be provided by county owned water service providers. The Bill should clearly affirm that the allocation of water for personal and domestic uses should be prioritized over other water uses. In the current transitional period, where competencies for water and sanitation are being devolved to the counties, there seem to be several instances of lack of clarity in the attribution of State functions. There is an apparent contradiction between the County Governments Act of 2012 and the 2014 Water Bill regarding the regulatory role, including tariff setting for water and sanitation, of county governments. The independent national water and sanitation regulator should be given clear competence to set a mandatory affordability standard to ensure that water and sanitation are affordable for the poorest. The regulator should equally be given the mandate to monitor compliance of counties and water providers with the normative content of the rights to water and sanitation. The country is waiting for the Water Bill to be adopted, so as to start planning for the rights to water and sanitation. I hence call on the parliament to urgently pass the 2014 Water Bill, while clarifying the above mentioned issues. Those improvements in the text are indispensable to clarify responsibilities and establish clear accountability lines. I also call on the national government to then adopt a new national water and sanitation strategy.

Furthermore, Kenya has an obligation to develop national standards and indicators that will enable it to monitor all elements of the human rights to water and sanitation – namely quality, affordability, availability, accessibility, acceptability, as well as non-discrimination and the elimination of inequalities, sustainability, accountability and participation.

Even in a decentralized system, the national government should set minimum mandatory standards that comply with human rights, in accordance to which county governments should define their own standards. An independent body at the national level - such as the National Water Service Regulatory Board - should monitor implementation.

In setting national and local standards, the national government and county governments must consider existing service levels, local context (such as the availability of water resources), and settlement types and densities. Interim standards may need to be set, with accompanying targets and indicators, before the best possible standard is achieved. Disaggregated data is essential in order fully to understand where and how discrimination occurs with respect to access to the human rights to water and sanitation. The indicators for the rights to water and sanitation developed by the Office of the High Commissioner for Human Rights should guide Kenya in this exercise.

Access to justice

Access to justice in cases of alleged violations of the rights to water and sanitation is crucial to hold authorities accountable. Kenya has to ensure that the rights to water and sanitation are effectively legally enforceable at the national and sub-national, but also at the international levels. While I welcome that there are already a few cases related to these rights before national courts, I call on the Government to accede to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

Conclusion

Kenya is in a critical transitional moment for the provision of water and sanitation. Kenya is often invoked as a model at the international level due to the constitutional recognition of water and sanitation as human rights. However, there is still a long way to go to realize the human rights to water and sanitation for all. Much more has to be done to translate the law into reality for the millions of Kenyans for whom these human rights are still only a mirage.

The State should hence use the opportunity presented by the current drafting of the Water Bill, and the upcoming water and sanitation strategy to use the normative content of the rights to water and sanitation to guide actions in the sector. There is an urgent need to clarify the attribution of functions between various levels of government, and between various government departments, with regards to water and sanitation. In that process, national mandatory minimum standards should be adopted (or in some cases, maintained) for the legal content of the rights to water and sanitation – including tariff setting and water quality, as well as regulations aimed at prohibiting water disconnections of those unable to pay, including public spaces such as schools, health facilities and prisons. The prioritization of the most marginalized individuals and groups, as provided in the Constitution should be clearly reflected into law, policy and financing.

These are only some preliminary impressions. A full report on this visit will be presented to the United Nations Human Rights Council in 2015, which will include a more detailed analysis of all that I have learned on this mission as well as specific recommendations to the Government and other key actors.

I look forward to continuing this dialogue with the Government, towards ensuring the full realization of the rights to water and sanitation to all people in Kenya.

END