beyond the mdgs – water, sanitation and access 26 to 27 may 2009 cape town studies in poverty and...
TRANSCRIPT
Beyond the MDGs – Water, Sanitation and Access
26 to 27 May 2009Cape Town
Studies in Poverty and Inequality Institute
Outline
• Irrefutable Point of Departure: Water is an essential prerequisite for life
• The Millennium Development Goals
• Progress in Meeting the MDGs on Water and Sanitation
• The Constitution of South Africa
• The Phiri Water case
• Conclusions
Water is essential
• “Water is a powerful symbol throughout the world, carrying with it ideas of baptism and new life, cleansing and healing, and the promise of growth and prosperity. In contrast, in a region of growing demands on a limited resource, the increasing scarcity of water could result in devastating conflicts and catastrophes”
1997 White Paper on a National Water Policy for South Africa
Uses
• Life
• Meeting basic needs
• Health
• Food Production
• Manufacturing and Production
• Sanitation
• Certain forms of energy
The MDGS
• Eight UN “Development Goals” adopted by states in 2000.
• Most of them to be realised by 2015.• Baseline date for measurement set at 1990.• In adopting the Millennium Declaration in the year 2000,
the international community pledged to “spare no effort to free our fellow men, women and children from the abject and dehumanizing conditions of extreme poverty.
• The MDGs encapsulate the development aspirations of the world as a whole. But they are not only development objectives; they encompass universally accepted human values and rights such as freedom from hunger, the right to basic education, the right to health and a responsibility to future generations.”
The Eight MDGs
• Eradicate extreme poverty and hunger• Achieve universal primary education• Promote gender equity and empower women• Reduce child mortality• Improve maternal health• Combat HIV/AIDS, malaria and other diseases• Ensure environmental sustainability• Develop a global partnership for development
• Each Goal had distinct targets and indicators of progress towards meeting the targets
Goal 7 – Targets 10 and 11
• Target 10: Halve, by 2015, the proportion of people without sustainable access to safe drinking water
• Target 11: Have achieved, by 2020, a significant improvement in the lives of at least 100 million slum dwellers– Indicator: Proportion of the population with
access to improved sanitation
The attainment of MDGs in Southern Africa
• Economic Commission for Africa – SA 2007 assessment:
• “The outcome of this study shows that the levels of poverty are not declining, as expected, and that the target of halving the number of people living on less than $US1 per day seems unachievable by 2015 for the region as a whole. In some countries, poverty levels have actually increased….”
Cont
• “..Southern Africa is likely to achieve the universal primary education goal. However, poverty, food insecurity, child malnutrition, gender inequality in secondary and tertiary levels of education, in the economy and the political sphere, high child and maternal mortality, deforestation, rural water and sanitation remain major challenges
SA and MDG Targets
• SA committed to meet the MDG targets in respect of development by 2014 – a year before the MDG target
• MDG baseline year is 1990, in SA baseline year generally based on year 2000 due to lack of data from former homelands and an incomparability of data between the 1995 and the 2000 Stats SA Income and Expenditure Surveys.
Progress in Meeting the MDGs on water and sanitation- Summary of Indicators of Progress
• Proportion of total population with access to an improved water source (%)
• 1994: 60,1. 2004: 78,7. 2015 Target: 80,1. Progress: Good• Proportion of rural population with access to an improved water
source (%)• 1994:44,4. 2004: 63,6. 2015 Target: 72,2. Progress: Good• Proportion of urban population with access to an improved water
source (%)• 1994: 70,3. 2004: 87,7. 2015 Target:: 85,2. Progress: Achieved• Proportion of total population with access to basic sanitation (%)• 1994: 48,7. 2004: 63,7. 2015 Target: 74,4. Progress: Good• Proportion of rural population with access to basic sanitation (%)• 1994:32,5. 2004: 44,5. 2015 Target: 66,3. Progress: Slow• Proportion of urban population with access to basic sanitation (%)• 1994: 58,8. 2004: 76,9. 2015 Target: 79,4. Progress: Good
Standard of Access
• The MDG goal for access to drinking water for South Africa was to provide 10.4 million households with 20 litres of water per person per day, accessible within 1000m of a household.
• The standard measure used by South Africa is based on the RDP level of 25 litres per person per day, located within 200m of a household
Already Achieved – Access to Water Target 10
• By 2007, 87.2% of households– 11.2 million households - had such access, while 10.8 million households throughout the country had access to free basic water.
• The total number of households increased from 10.1 million in 1994 to 12.8 million in 2007.
• BUT, the level of access to free basic water differed quite significantly between different provinces. In 2006, 99% of households in Gauteng had access to free basic water, compared with just 50.4% of households in the Eastern Cape, and 43.6% of households in Limpopo. Access is severely hampered by lack of infrastructure in rural areas.
Already Achieved - the Sanitation Indicator
• In 1994, only 50% of all households in South Africa had access to basic sanitation facilities
• This increased to 73% of households by 2007 - 9.6 million households (out of a total of 12.8 million).
• The basic acceptable indicator of suitable sanitation is a ventilated improved pit latrine.
• Despite the improvement in sanitation levels, in 2007, 113 085 households still relied on the bucket system -- this is an improvement on the 609 675 households that used the bucket system in 1994
• But, government admits that one of the obstacles to better sanitation is that the extensive roll out of housing during this same period was not accompanied by bulk water and sewerage infrastructure upgrading, which supports anecdotal evidence regarding the surprising state of new RDP houses without access to running water or facilities for water borne sewerage.
The Constitution of South Africa
• The Constitution, which expresses the desires of the people of South Africa who created it, is now the highest law of the land, and all law, including water law, must follow the spirit and letter of the Constitution and should give force to the moral, social and political values that theConstitution promotes.
White Paper, 2007
Applicable Constitutional Rights
• Section 9 – Right to Equality• Section 10 – Right to Dignity• Section 11 – Right to Life• Section 24 - Right a to non-harmful
environment• Section 26 – Right to adequate housing• Section 27 – Rights to health care
services, sufficient food and water, and social security
Phiri Water Case
The City of Johannesburg, Johannesburg Water (Pty) Ltd and The Minister of Water Affairs and Forestry
VLindiwe Mazibuko, Grace Munyai, Jennifer Makoatsane, Sophia Malkutu, Vusimuzi Paki and the Centre on Housing Rights and Evictions
• Supreme Court of Appeal, Case 489/08• Heard: 23-25 February 2009• Judgement handed down: 25 March 2009• Appeal from judgement of Tsoka J in Johannesburg High
Court
Main Legal Issues
• Do the City of Johannesburg and Johannesburg Water (a company in which the City is the sole shareholder) have a constitutional duty to provide free water to the residents of Phiri (a township in Soweto)?
• Can the City and Joburg Water restrict access to water by Phiri residents by means of prepaid metres?
Judgment of the Court A Quo• The Court reviewed and set aside the decision of the City,
alternatively Johannesburg Water, to limit free basic water supply to 25 litres per person per day or 6 kilolitres per household per month.
• The Court declared the prepayment water system used in Phiri Township, the ‘forced installation’ of the system and the choice given by the City alternatively Johannesburg Water to the respondents and other residents of Phiri of either a prepayment water supply or a water supply through standpipes, unconstitutional and unlawful.
• The Court ordered the City alternatively Johannesburg Water to provide each applicant ‘and other similarly placed residents of Phiri Township’ with a free basic water supply of 50 liters per person per day and the option of a metered supply installed at the cost of the City.
Legal Context of Challenge
• The City is a municipality in the Province of Gauteng. In terms of the Constitution one of the objects of local government is to ensure the provision of services to communities in a sustainable manner (s 152(1)(b)) within its financial and administrative capacity.
• It has executive authority in respect of, and has the right to administer, among others, water and sanitation services (s 156(1)) and may make bylaws for the effective administration of these services.
Historical Context
• The residents of Phiri are very poor, but, for years, until 2004, they, like residents in the rest of Soweto, Alexandra et al, had access to an unlimited supply of water which was not metered and for which they were charged on the basis of a deemed consumption of 20kl per month.
• In 2004 the deemed consumption was discontinued by the City and prepayment meters were installed dispensing 6kl water per stand per month free. Additional water had to be pre-paid for.
Respondents’ Claims
• The respondents contended that 6kl water per stand per month was insufficient water for the residents of Phiri and that in terms of s 27 of the Constitution, they had a right of access to sufficient water, which they contended would be 50 litres water per person per day, and this quantity of water, should be provided free to each resident in Phiri who could not afford to pay for such water.
Section 27 of the Constitution of South Africa
• Section 27 of the Constitution provides that everyone has the right to have access to sufficient water. The section reads as follows:‘(1) Everyone has the right to have access to –(a) health care services, including reproductive health care;(b) sufficient food and water; and(c) social security, including, if they are unable to support themselves and their dependents, appropriate social assistance.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.’
Water Services Act 108 of 1997
• Giving effect to its obligation in terms of s 27(2) the state enacted the Water Services Act 108 of 1997.
• Section 3 provides as follows:(1) Everyone has a right of access to basic water supply and basic sanitation.(2) Every water services institution must take reasonable measures to realise these rights.(3) Every water services authority must, in its water services development plan, provide for measures to realise these rights.(4) The rights mentioned in this section are subject to the limitations contained in this Act.’
Water Services Act (cont)
• ‘“Basic water supply” means the prescribed minimum standard of water supply services necessary for the reliable supply of a sufficient quantity and quality of water to households, including informal households, to support life and personal hygiene’ (s 1).
• It follows that in terms of s 3(1) everyone has a right of access to ‘the prescribed minimum standard of water supply services necessary for the reliable supply of a sufficient quantity of water to households . . . to support life and personal hygiene.’
Legal Entitlement• As envisaged in s 3 read with the definition of ‘basic water supply’
water services regulations providing for the minimum standard of water supply services were promulgated. Regulation 3 provides:
• ‘3 The minimum standard for basic water supply services is –(a) . . .(b) a minimum quantity of potable water of 25 litres per person per day or 6 kilolitres per household per month –(i) at a minimum flow rate of not less than 10 litres per minute;(ii) within 200 metres of a household; and(iii) with an effectiveness such that no consumer is without a supply for more than seven full days in any year.’
• Section 3 of the Act read with regulation 3(b) therefore provides that everyone has a right of access to a minimum quantity of water of 25 litres per person per day or 6 kilolitres per household per month.
Much higher standard than the MDG standard…
• The MDG standard for drinking water for South Africa was to provide 10.4 million households with 20 litres of water per person per day, accessible within 1000m of a household.
Question before the SCA: Revisiting “Sufficiency”
• The Water Services Act together with the regulations promulgated in terms thereof, provide that 6kl water per household per month or 25 litres per person per day, is the minimum quantity of water that would constitute a sufficient quantity of water for households to support life and personal hygiene.
• In terms of s 3 and subject to the limitations contained in the Act (s 3(4)) everyone has a right of access to that quantity of water (s 3(1)), every water services institution must take reasonable measures to realise these rights (s 3(2)) and every water services authority must, in its water services development plan, provide for measures to realise these rights (s 3(3)).
This is just a minimum..• These provisions were not intended to detract from the right of
everyone of access to sufficient water in terms of s 27(1) of the Constitution. They were intended, as required by s 27(2), to achieve a progressive realisation of those rights.
• As a result of these provisions it cannot be contended by a water services institution that a lesser quantity of water would constitute sufficient water to support life and personal hygiene.
• The quantity stipulated is the minimum that may constitute sufficient water. However, circumstances differ, some people, like the residents of Phiri, may have waterborne sanitation while others have pit latrines which makes a dramatic difference to the water required.
• By stipulating the minimum that would constitute sufficient water the legislature has not stipulated that that quantity would in all circumstances constitute sufficient water.
Court posed these questions
• It follows that the Water Services Act does not deprive anyone of the right of access to sufficient water in terms of s 27(1).
• This interpretation gives rise to certain questions, i.a.:
• (i) What would constitute sufficient water in terms of s 27(1);
• (ii) Does the City have to provide such access or access to a lesser quantity of water free.
What is ‘sufficient’?• A commitment to address a lack of access to clean water and to
transform our society into one in which there will be human dignity and equality, means that a right of access to sufficient water cannot be anything less than a right of access to that quantity of water that is required for dignified human existence.
• Support for this conclusion is to be found in the 2002 General Comment 15 of the United Nations Committee on Economic, Social and Cultural Rights on the International Covenant on Economic, Social and Cultural Rights:‘The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights.’
• 25 litres is a minimum standard that was set with people living without water borne sewerage in mind. Each flush of a toilet takes about 10 litres of water, so 25 litres per person per day clearly is not sufficient to provide for a life of dignity for the people of Phiri.
• The court found on the evidence placed before it that 42 litres per person per day constituted sufficient water in terms of section 27 (1) of the Constitution
Does the City have to provide this amount of water, or less, free of charge?
• In terms of the Constitution, every Phiri resident has the right to access 42 l of water per day
• Many Phiri residents are poor, and many cannot afford to pay for the water that they need
• “Not being able to pay for the water, they have no access to that water”.
• It would be untenable if the City and the state, having available resources, were not obliged to provide water free of charge to those who needed it.
Argument• The respondents submitted that it would be appropriate in these
circumstances to replace the order of the court below with an order that the City provide the quantity of water that is found to constitute sufficient water in terms of s 27(1) free of charge to every resident in Phiri.
• Their case is that the City’s case on the papers is not that it cannot afford to do so and having failed to take action against non-payers the City had in fact, for many years provided an unlimited quantity of water free to the deemed consumption areas such as Phiri. They submitted further that to now, except in special cases, provide only 25 litres per person per day free is a retrogressive step.
• The City contended that it would be unreasonable to provide 42 l free water to every resident of Phiri, because some can pay, but more so because an order that the City should provide 42 litres of free water to the residents of Phiri who cannot afford to pay for such water will in effect oblige the City to provide that quantity of water free to other residents in the City whose circumstances are similar to those of the Phiri residents.
Order
• The court found that the City and the State did have a constitutional obligation to provide 42l of free water per day to people in Phiri who could not afford it, subject to their available resources, and that their policies should be revised to reflect that (which the court would not do as this would be an usurpation of the functions of the executive)
• However, the court also ordered that until this had been done, and as an incentive to the City to actually revise their policies, the City was obliged to provide 42 l free of charge to those who cold not afford it, and these would be determined by who was registered on the City’s Register of Indigents.
Legality of Prepayment meters
• Interestingly, these metres were only found to be unlawful because the bye-laws did not specify them, hence they were declared unlawful, but this was suspended for two years to specifically allow the City to change its bye-laws.
• The Court A Quo’s order that the prepayment meters already installed had to removed was rejected by the SCA as being an “(inappropriate) remedy in the circumstances” given the other benefits that delivery by such method allegedly provided for the recipients.
Conclusions
• This judgment clearly sets the bar far higher than the MDG standard, specifically for people with reticulation services
• A good example of SA being true to its own principles and respecting the Constitution, improving on an international standard that has been proven cannot afford dignity to people – low benchmarks for the poor in developing countries might be a valid critique of the MDGs
• What was never addressed however was the question of the availability of water as an “available resource” – available resources clearly cannot only be seen as being money if we have a shortage of natural resources
