Handbook HRWS- Legal Framework -part 1 - Rights to … · 2014-01-17 ·...

1

UN Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation

Catarina de Albuquerque

Handbook for realising the human rights to water and sanitation: From policy to practice

Chapter 1 REALISATION OF THE HUMAN RIGHTS TO WATER AND SANITATION THROUGH NATIONAL LEGAL FRAMEWORKS – part one

TABLE OF CONTENTS

1. NORMATIVE CONTENT OF THE HUMAN RIGHTS TO WATER AND SANITATION .......................... 2 2. RELATIONSHIP BETWEEN INTERNATIONAL HUMAN RIGHTS LAW AND NATIONAL LEGAL FRAMEWORKS ..................................................................................................................................... 3

Progressive realisation .................................................................................................................... 3 Role of national legal frameworks ................................................................................................... 3 Structure of national legal frameworks ........................................................................................... 4

3. STATUS OF THE RIGHTS TO WATER AND SANITATION IN THE NATIONAL LEGAL FRAMEWORK ..... 6 4. HUMAN RIGHTS PRINCIPLES IN THE NATIONAL LEGAL FRAMEWORK ........................................ 9

4.1 NON-‐DISCRIMINATIONAND EQUALITY .................................................................................. 9 4.2 ACCESS TO INFORMATION AND TRANSPARENCY ................................................................ 13 4.3 PARTICIPATION .................................................................................................................... 16 4.4 ACCOUNTABILITY ................................................................................................................. 19

2

The human right to WATER entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use. SANITATION is defined as a system for the collection, transport, treatment, disposal or reuse of human excreta and associated hygiene. The human right to sanitation entitles everyone to sanitation services that are physically accessible and affordable, safe, hygienic, secure, socially and culturally acceptable, and which provide privacy and ensure dignity.

1. NORMATIVE CONTENT OF THE HUMAN RIGHTS TO WATER AND SANITATION This handbook uses the description of the normative content of the human rights to water and sanitation as set out in the boxed text. The interpretation of the normative content of the human right to water has been developed in General Comment No. 151 of the UN Committee on Economic, Social and Cultural Rights (CESCR).2 The CESCR confirmed the status and content of sanitation as a human right in its Statement on Sanitation,3 based on a report on human rights obligations related to sanitation by the then Independent Expert, now Special Rapporteur on the human right to safe drinking water and sanitation.4

The human rights to water and sanitation are derived from the human right to an adequate standard of living, as contained in Art. 11 (1) ICESCR.5 While Art. 11 (1) ICESCR does not explicitly mention water or sanitation, the use of the term “including” in the Covenant requires the incorporation of all aspects that are indispensable for reaching an adequate standard of living. The concept of a derived right has been included in consecutive resolutions of the UN Human Rights Council (HRC).6

The handbook treats water and sanitation as two distinct human rights. Even though the normative descriptions use many identical terms, the interpretation of these categories leads to distinct considerations for each of the rights.7

Hygiene has important human rights implications with respect to both rights. Good hygiene behaviour is impossible if water and sanitation facilities are absent or are inadequate – conversely, the benefits of water and sanitation are limited if good hygiene is not practised.8

1 UN Committee on Economic, Social and Cultural Rights, General Comment No. 15 (2002), The right to water, UN Doc. E/C.12/2002/11 2 The CESCR is tasked with monitoring implementation of the obligations of States Parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR) and is thus the authoritative body for interpreting Covenant rights. 3 UN Committee on Economic, Social and Cultural Rights, Statement on the Right to Sanitation (2010), UN Doc. E/C.12/2010/1 4 Human rights obligations related to sanitation, Report of the Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation, 2009, A/HRC/12/24 5 The right to an adequate standard of living is also codified in Art. 27 (1) of the Convention on the Rights of the Child (CRC). 6 See UN Human Rights Council Resolutions A/HRC/RES/15/9, 16/2, 18/1, 19/5, 19/37, 21/2 and 24/L.31 7 The normative description or content categories of the rights to water and sanitation follows a typology that is used for other economic, social and cultural rights, including for example the rights to housing (CESCR General Comment No. 4), to food (CESCR General Comment No. 12), to education (CESCR General Comment No. 13), to health (CESCR General Comment No. 14), to work (CESCR General Comment No. 18) and to social security (CESCR General Comment No. 19). 8 V. Roaf, I. Winkler, Human Rights Criteria Explained: Hygiene, on file with authors

3

2. RELATIONSHIP BETWEEN INTERNATIONAL HUMAN RIGHTS LAW AND NATIONAL LEGAL FRAMEWORKS International human rights law demands that States work towards achieving universal access to water and sanitation, prioritising those people most in need and guide this process by the human rights principles and normative content as set out in section 1.

Progressive realisation States have to determine the ways and means through which they realise the rights within their own jurisdiction. International human rights law demands that in doing so, States comply with the obligation of progressive realisation contained in Art. 2 (1) ICESCR.9 The concept of progressive realisation demands that States take deliberate, concrete and targeted steps towards fully realising Covenant rights as expeditiously and effectively as possible and using maximum available resources.10

Progressive realisation is a concept that both recognises that economic, social and cultural rights can only be achieved over time, while demanding that States initiate action immediately and make continued and deliberate progress with a focus on the most marginalised and vulnerable individuals and groups. Achieving basic access for all must be given absolute priority. Such basic access must itself comply with the normative content and principles of the human rights to water and sanitation. States should therefore establish minimum service levels and prioritise firstly the achievement of a basic service level for all. The concept of progressive realization is complemented by two principles: firstly, the obligation to ensure non-‐discrimination which is of immediate effect and thus must be complied with by all States parties and at all times.11 Secondly, the principle of non-‐retrogression, which generally prohibits any intentional and unintentional backward steps in the enjoyment of human rights. Retrogression is only permissible in exceptional cases when it is unavoidable, and must then be justified against a number of criteria.12

Role of national legal frameworks International human rights law cannot provide for the level of detail that is needed at the national level, where the particular circumstances of each country determine what is needed to realise rights. The detailed parameters for water and sanitation service provision that will bring taps and toilets to people can only be crafted within the context of each State.

9 Art. 2 (1) ICESCR states: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-‐operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” 10 Committee on Economic, Social and Cultural Rights, General Comment No. 3, The Nature of States parties obligations (Art. 2 (1)), para. 2, 9, 1990, E/1991/23 11 Equality, non-‐discrimination and the need to focus on the most vulnerable and marginalised is elaborated in section 4.1 below 12 Committee on Economic, Social and Cultural Rights, General Comment No. 3, Domestic Implementation of the Covenant, para. 9, 10, 1990, E/1991/23 For a detailed explanation of the criteria to assess the justification of retrogressive measures, see: Sustainability in the realisation of the human rights to water and sanitation, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, para. 15, 2013, A/HRC/24/44

4

While States are free to choose the ways and means to realise human rights, Art. 2 (1) ICESCR points out the particular role of legislation in the realisation of Covenant rights.13 Legal frameworks constitute the formal expression of a State’s intentions and have a legally binding and tendentially perpetual nature.

The following sections provide an outline of the considerations that legislators, policy makers and civil servants in the executive and its agencies should use when drafting, revising and applying legal and policy frameworks in order to ensure that these comply with the human rights to water and sanitation.

Structure of national legal frameworks National legal frameworks are diverse -‐ there is no single structure that applies to all legal systems the world over. However, similarities exist in that legal frameworks generally consist of different tiers, with a certain hierarchical consistency. In order to describe how States should translate the human rights to water and sanitation into their national systems, this paper uses a common categorisation of legal instruments, namely of “constitution”, “laws”, “regulations” and “policy level documents”.14

This categorisation distinguishes firstly on the basis of where an instrument originates from: the legislative or the executive branch of government, and secondly uses a hierarchical distinction of instruments.

13 M. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development, p. 125, Oxford University Press, 1995 14 Although this paper does not include customary law, States must ensure that the entire legal framework, including customary law, is consistent with rights to water and sanitation.

5

LEGISLATIVE BRANCH EXECUTIVE BRANCH CONSTITUTION

The Constitution is the supreme and fundamental law that sets out the State’s basic structure including the exercise of political power and the relationship between political entities and between the State and the people.15This usually includes a set of human rights. Generally, constitutions are difficult to alter, pressure-‐resistant, and represent the most durable form of legislation.16 Constitutions qualify as supreme laws in the national legal hierarchy, with which all other legislation must be in harmony.17

REGULATIONS Where laws delegate the power to make rules to the executive branch, this paper uses the term ‘regulation’. This type of delegated legislation has the same legal force as a law and more easily allows for the inclusion of technical, scientific and other expertise that the executive branch might hold. Regulations are commonly used to fill general terms contained in laws with meaning. However, regulations are generally not as rigid as laws, as they can be changed by the executive. In most countries, courts can repeal regulations if these contravene laws, as laws are hierarchically superior. This paper refers to ‘regulation’ for all rules that emanate from the executive branch. This covers other common terms like ‘decree’, ‘ordinance’, ‘circular’ or ‘by-‐law’.

LAWS The legislature has the sole power to create, amend and repeal laws. It thereby sets the parameters within which the executive branch of government has to act.18 Laws contain more detailed provisions to govern the country, including in the realm of rights. Laws can furthermore, within limits, delegate parts of the authority to create rules to the executive branch (see regulations). In most countries, some special courts – mostly supreme or constitutional courts – have the power to order a change to laws when these contravene the constitution or (in some jurisdictions) international human rights law. This paper refers to ‘law’ for all rules that emanate from the legislature. This covers other common terms like ‘act’, ‘bill’ or ‘statute’.

POLICY LEVEL DOCUMENTS Policy level documents constitute the general principles by which a government is guided in its management of public affairs.19 They are used to shape the ‘guide to action’ by which the executive puts its tasks into practice. Like regulations, policies must not contravene laws. They however also have a role in shaping future laws, for example by including as an action point the revision of laws to bring them in line with human rights. Contrary to regulations, laws and the constitution, policy level documents are generally difficult to enforce judicially, as they serve as a declaration of intent rather than as a description of rights and obligations. Their association with a certain government might render them less durable over time. This paper refers to ‘policy level documents’ for all executive instruments that do not have the legal force of a law. This covers other common terms like ‘policy’, ‘strategy’, ‘plan’ or ‘programme’.

15 J. Hatchard, M. Ndulo, P. Slinn, Comparative constitutionalism and good governance in the Commonwealth: an Eastern and Southern African perspective, p. 12, Cambridge University Press, 2004 16 Van Alstyne, William W., The Idea of the Constitution as Hard Law, 37 Journal of Legal Education 174 (1987) 17 See for example: Art. 51 of the Constitution of Peru: “The Constitution prevails over any other legal norms, the law over other lower-‐ranking standards, and so on successively. Publicity is essential in order to enforce any standard of government.” § 7 (2) of the Constitution of Bangladesh: “This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution and other law shall, to the extent of the inconsistency, be void.” 18 J. Hatchard, M. Ndulo, P. Slinn, Comparative constitutionalism and good governance in the Commonwealth: an Eastern and Southern African perspective, p. 73f, Cambridge University Press, 2004 19 Black’s Law Dictionary: http://thelawdictionary.org/

6

A simplified example of the functioning of this categorisation and the interaction between the different tiers, presenting a situation where affordability of sanitation services is at issue:

The constitution of a country guarantees that water and sanitation are human rights.

A law further specifies sanitation service provision for households in areas where a sewage network exists. It states that sanitation services must be affordable and that all households must connect to the network. The law tasks the utility, together with a regulator, with regulating the tariffs for connecting households.

The corresponding regulation – passed by the regulator – states that each household must bear the capital costs for laying connecting pipes. The regulation makes provision for paying the connection fee in instalments for those households who are unable to pay upfront.

Most households in the area are able to either pay upfront or in instalments and the utility can usually recoup capital investment for connection. One family approaches the utility to seek connection to the sewage network. Their household income is so low that they are unable to pay the requested fee, even in instalments. The utility – based on the regulation – refuses to connect the household.

In this example, the regulation does aim to ensure affordability by allowing payment in instalments. However, for this individual family, the regulation unintentionally does not ensure affordability. In this individual case, the insistence by the utility on using the regulation contravenes the law. As the higher level norm, the law guarantees affordability for every individual household. The family is therefore able to demand connection to the network at a cost that is affordable to them, based directly on the law. The utility – in cooperation with the regulator – in turn has the duty to find a solution, for instance through the adoption of a scheme that adjusts connection fees for low-‐income families.

The role of policy level documents is somewhat different: As the ‘guide to action’, governments should use policy level documents to plan for the progressive realisation of the rights to water and sanitation. Related to the example given above, a policy could then plan for a revision of the regulation to include a 100% waiver of fees for those households who are unable to pay any connection fee.

3. STATUS OF THE RIGHTS TO WATER AND SANITATION IN THE NATIONAL LEGAL FRAMEWORK Within national legal frameworks, a general guarantee of rights is best placed in the constitution as the supreme law of the State with which all subordinate tiers of the legal framework must comply, and which itself can generally not be easily changed. The constitutional guarantee then serves as a reference for drafting and interpreting subordinate laws, regulations and policies.

Constitutional guarantee of rights to water and sanitation A constitutional guarantee of the rights to water and sanitation can take different forms: it can be explicit or implicit and the level of detail may vary.

7

The human rights to water and – to a lesser extent – sanitation are and have been part of many Constitutions, including prior to the recognition of the human right to safe drinking water and sanitation by the UN General Assembly in 2010. Uruguay was the first country to include, in 2004, an explicit guarantee of the rights to water and sanitation in its Constitution, stating in Art. 47 that:

[...] Access to clean water and access to sanitation constitute fundamental human rights. [...]20

India provides an example of an implicit constitutional guarantee of the rights to water and sanitation. While the rights to water and sanitation are not explicitly mentioned in the constitution, settled case law of courts at both State and federal level interprets Art. 21 of the Constitution – the right to life – as encompassing the right to safe and sufficient water and sanitation.21

In Argentina, the constitutional rights to health and a clean environment have been interpreted as including the right to clean water, for instance in the context of a case of (ground)water pollution that adversely affected the health of a community.22

International human rights law does not oblige States to include a guarantee of the rights to water and sanitation in their constitution, nor does it prescribe whether a guarantee should be explicit or implicit. However, such a guarantee is highly desirable if the rights to water and sanitation are to have meaning within the legal framework of a country. In the absence of a clear, top-‐level norm, the rights to water and sanitation may be protected in a piecemeal fashion, spread over a number of provisions in different laws, regulations and policies and be interpreted differently by different actors. This type of protection system is problematic for two reasons: Firstly, individuals as rights holders will often find it difficult to identify and pursue their rights. Secondly, legal frameworks are unlikely to do justice to every individual case. In those cases where laws, regulations and policy level documents – often unintentionally – do not satisfy an individual’s right to water and sanitation, a constitutional guarantee can then override subordinate norms and thereby guarantee the rights to water and sanitation in practice. States must furthermore make everyone aware of their rights so they are able to identify and demand their enforcement.

However, the desirability of an explicit constitutional guarantee of the rights to water and sanitation does not necessarily mean that States must revise their constitutions, so as to ensure consistency with human rights obligations. The formal recognition of the human rights to water and sanitation in the constitutional text ensures a greater legal certainty regarding the existence and concrete content of these human rights.

20 Art. 47 of the Constitution of Uruguay, 1967, as last amended 31 October 2004: “El accesso al agua potable y el accesso al saneamiento, constituyen derechos humanos fundamentales.” 21 Art. 21 of the Constitution of India: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” See for example: S.K. Garg v. State of Uttar Pradesh and others, High Court of Allahabad, India, Writ Petition No. 19754 of 1998, judgement of 28. May 1998: “the right to get water is part of the right to life, guaranteed by Art. 21 of the Constitution, but a large section of citizens of Allahabad are deprived of this right.” 22 Children of the Paynemil community/amparo, 2nd Chamber of Appeals for Civil Matters of the Province of Neuquen, File 311-‐CA-‐1997, 19 May 1997

8

Constitutional guarantee of non-‐discrimination and equality Non-‐discrimination and equality are fundamental components of international human rights law and essential to the enjoyment of economic, social and cultural rights.23 Non-‐discrimination and equality are fundamental principles protected across all human right treaties, including Art. 2 (2) ICESCR, which prohibits both direct and indirect discrimination.24 Because of the fundamental importance of non-‐discrimination and equality for the enjoyment of human rights in general and of the rights to water and sanitation in particular, it is highly desirable that a State’s constitution guarantees non-‐discrimination and equality. Similar to the guarantee of water and sanitation in the constitution, such a constitutional provision clearly confers a legal claim to individuals. It thus guarantees non-‐discrimination and equality even in those cases where the reminder of the legal framework – sometimes unintentionally – results in discrimination.

Constitutional guarantees of equality before the law and non-‐discrimination are common in most jurisdictions. They usually include at least a guarantee of equal treatment for all. Preferably, the role of positive measures in achieving substantive equality for all is also enshrined in the constitution, such as in the Constitution of South Africa, which states in Art. 9 that:

1. Everyone is equal before the law and has the right to equal protection and benefit of the law. 2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. 3. [...]25

Constitutional guarantee of accountability (right to a remedy/access to justice) The right to a remedy is contained in Art. 8 of the Universal Declaration of Human Rights and constitutes a principle of customary international human rights law. It demands that individuals must be able to claim their rights before competent institutions when they feel their rights have been violated. While States have discretion in how they incorporate this principle in their national legal frameworks, it is important to recognise that enforceability gives human rights legal weight, both for individuals and all actors involved in service provision.26 Ideally, the right to a remedy should therefore be enshrined in the constitution.

Accountability and the right to a remedy should permeate the legal framework and should involve judicial, administrative, regulatory and other bodies as well as a range of mechanisms. Considerations regarding oversight and accountability between the different institutions involved in water and sanitation service provision are addressed in section 4.4 below. However, the principle of the right to a remedy should be enshrined at constitutional level to ensure that it is available to all.

23 Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-‐Discrimination in Economic, Social and Cultural Rights, para. 2, 2009, E/C.12/GC/20 24 Direct discrimination is the intentional exclusion of individuals or groups from water and sanitation services. Indirect discrimination has the effect of excluding individuals or groups, without necessarily intending to. 25 Art. 9 of the Constitution of the Republic of South Africa, available at: http://www.info.gov.za/documents/constitution/1996/a108-‐96.pdf 26 Committee on Economic, Social and Cultural Rights, General Comment No. 9, Domestic implementation of the Covenant, para. 3, 1998, E/C.12/1998/24

9

Constitutional guarantees of the right to a remedy or the right to access courts are common across jurisdictions. The Portuguese Constitution for examples provides in Art. 20 (1):

Everyone is guaranteed access to the law and the courts in order to defend those of his rights and interests that are protected by law, and justice may not be denied to anyone due to lack of sufficient financial means. 27

Many constitutions also establish oversight bodies that are competent to hear individual complaints, such as offices of ombudsmen or human rights commissions. This can be a good way of ensuring easily accessible remedial mechanism. Examples include the Constitution of Argentina:

Section 86: The Ombudsman is an independent authority created within the sphere of the National Congress operating with full autonomy and without receiving instructions from any other authority. The mission of the Ombudsman is the defence and protection of human rights and other rights, guarantees and interests contained in this Constitution and the laws, in the face of deeds, acts or omissions of the Administration; as well as the control of public administrative functions. The Ombudsman has capacity to be a party in a lawsuit. He is appointed and removed by Congress with the vote of two-‐thirds of the members present of each House. He has the immunities and privileges of legislators. He shall hold office for the term of five years and may only be re-‐appointed on one occasion. The organization and operation of this body shall be ruled by a special law.28

4. HUMAN RIGHTS PRINCIPLES IN THE NATIONAL LEGAL FRAMEWORK Human rights principles contain a set of general safeguards that relate to the process of regulating and realising the rights to water and sanitation. The systems put in place for water and sanitation services must be based on equality, accountability and participation.

Human rights principles must be ensured in the context of realising all human rights, not just the rights to water and sanitation. The following sections therefore refer to both the general legal framework of countries – which typically includes general norms on the human rights principles – and to norms specific to the water and sanitation sectors.

4.1 NON-‐DISCRIMINATION AND EQUALITY Direct discrimination of individuals or groups of individuals on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, disability or other status must be explicitly prohibited. Direct discrimination in the context of this paper refers to laws, policies or practices that intentionally exclude people from service provision or treat them unequally.

States must furthermore be mindful of de facto, or “indirect”, discrimination and – where this is revealed – take immediate measures to effectively end it. Addressing indirect discrimination in the context of this paper refers to laws, regulations, policies or practices that unintentionally

27 Art. 20 of the Constitution oft he Portuguese Republic, available at: http://www.portugal.gov.pt/en/portuguese-‐democracy/a-‐constituicao-‐da-‐republica/a-‐constituicao-‐da-‐republica.aspx 28 Section 86 of the Constitution of Argentina, available at http://www.constitution.org/cons/argentin.htm and http://pdba.georgetown.edu/Constitutions/Argentina/argen94_e.html (English translation)

10

have the effect of excluding people from service provision or treating them unequally. An example of indirect discrimination is where block tariffs that ensure a low price for a limited amount of water can unintentionally discriminate against large households. These larger households may not be able to stay below the threshold of the lowest block and thereby will face higher costs per unit.29

In order to reach equality of water and sanitation service provision, States must work towards eliminating existing inequalities. This requires knowledge of disparities, which typically not only include income groups but also rural – urban populations, disparities based on gender and the exclusion of marginalised individuals or groups. Targeted affirmative measures, primarily through policy level documents, must then be taken to ensure that gaps between those served and those unserved are narrowed and eventually closed.

Laws Next to the constitutional guarantee of the right to equality, a law that specifies the prohibition of discrimination as well as the duty to work towards equality is essential.30 Laws should furthermore contain complaint mechanisms – including courts – to ensure that any instances of discrimination are addressed.

The UK’s Equality Act 2010 is an example of a law that outlaws discrimination in the workplace and wider society. It applies to private actors as well as to government agencies. The latter are bound by the equality duty, obliging public bodies to shape policy and deliver services in such a way that discrimination is eliminated and equality of opportunity advanced.31

Regulations In the legal framework specific to water and sanitation service provision, regulations should contain affirmative action / positive measures for marginalised groups and persons. This will include measures to make water and sanitation services affordable for poor people but also targeted investments to eliminate disparities. Enforcement is crucial to effectively outlaw discriminatory practices and exclusion by private sector actors. An example from Honduras:

Honduras, Decree No. 118-‐200332 Article 22: Priority shall be given, without forbearing from the objectives of improved efficiency and quality, to the goals of maintaining and extending the coverage of potable water and sanitation services in economically deprived areas, applying criteria of equity. Article 36: The tariffs for water and sanitation services provided to users with low family incomes, which are determined by means of socio-‐economic studies, shall be set in a manner that allows a partial recovery of costs and shall, as long as the condition of social vulnerability endures, be assigned as preferential tariffs.

29Committee on Economic, Social and Cultural Rights, General Comment No. 20, para.37, E/C.12/GC/20, 2009. 30Committee on Economic, Social and Cultural Rights, General Comment No. 20, para.37, E/C.12/GC/20, 2009. 31 An overview of the UK Equality Act (2010) is available here: https://www.gov.uk/equality-‐act-‐2010-‐guidance The public sector equality duty is described at https://www.gov.uk/equality-‐act-‐2010-‐guidance#public-‐sector-‐equality-‐duty 32Honduras, Decree No. 118-‐2003, Framework Law for the Drinking Water and Sanitation Sector, available at: http://faolex.fao.org/docs/pdf/hon41347.pdf

11

Policy level documents Policies take up a particular role in working towards substantive equality, as this can only be reached through a process of affirmative action for those unserved. Governments must clearly focus their actions on water and sanitation service provision for marginalised and disadvantaged people. Policies should therefore include this as a purpose. An example from Ghana:

Ghana, National Water Policy, 2.2.2 Focus Area 2 – Access to Water33 Principles and Challenges -‐ The main principles and challenges include: (i) the fundamental right of all people without discrimination to safe and adequate water to meet basic human needs; [...] Policy Objectives -‐ The policy objectives are to; (i) facilitate improving access to potable water without discrimination; and (ii) enhance the management and development of water resources in a manner which, as first priority, safeguards that the entire population, particularly the poor and vulnerable, will have access to adequate and potable water.

States should furthermore monitor the implementation of measures that aim to ensure equality. Policies and plans should use appropriate indicators and benchmarks to assess both the steps taken and the results achieved in the elimination of discrimination water and sanitation service provision.

Common challenges Issue 1: Informal settlements Insecure tenure in informal settlements is often used as an argument to deny households or communities the connection to existing networks or the expansion of networks to those areas. Tenure status must never be invoked as a justification to deny access to water and sanitation.

Issue 2: Homeless people In many countries, open defecation and urination is prohibited by law. While there are clear health reasons for such laws, this type of prohibition often has a discriminatory effect on people who do not have adequate access to sanitation. Homeless people and people living in informal settlements without sanitation facilities might have no choice but to defecate in the open. Enforcement of such rules against persons who have no option constitutes discrimination and must be discontinued. As an interim solution, States should urgently ensure access to sanitation facilities, including at night, until adequate housing is provided.34

Issue 3: Covert discrimination Many discriminatory practices are covert. For example, Roma communities in Europe or particular ethnicities or castes in other countries often face unequal access to water and sanitation.35 In Hungary, a city council cut off public water pumps, even though Roma families relied on those

33Ghana, National Water Policy, 2007, available at: http://www.abv-‐volta.org:10000/abv2/pays/ghana/national-‐water-‐policy-‐ghana 34Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, Mission to the United States of America, A/HRC/18/33/Add.4, 2 Aug 2011, para. 56-‐60. 35 C. de Albuquerque, V. Roaf, On the right track -‐ Good practices in realising the rights to water and sanitation, p. 143-‐144 , 2012, available at: www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/SRWaterIndex.aspx

12

sources for drinking.36 States must adopt proactive measures to eliminate both direct and indirect discrimination and devote greater resources to neglected groups in order to close the gaps between them and other sections of the population. The Municipality of Prekmurje in Slovenia has for example waived the strict regulations on house ownership to enable Roma families to access municipal water and sanitation services.37

Issue 4: Gender and access to water and sanitation Women and girls are often particularly affected by a lack of water and sanitation as they are often tasked with the collection of water and with responsibilities of caring for sick family members. Women face security risks when they go out at night to defecate in the open, and risk their health by waiting for dusk to relieve themselves in order to seek privacy. Girls stay out of school or drop out completely when they reach menstruation age, as there are often no appropriate facilities present to manage their menstruation or simply because access to menstrual hygiene materials is unaffordable. States must address these issues through the development of policies that focus on women and girls so that they are able to go to school.

Issue 5: Physical accessibility of facilities Individuals are often unable to access water and sanitation facilities because the designs are not inclusive of their needs. Persons with disabilities, children, older persons, chronically ill people and others must be taken into account when planning, designing or reconstructing facilities.

Issue 6: Stigmatisation through special procedures for subsidies Subsidies and other mechanisms will be needed in virtually all countries to ensure that people who are unable to pay for services will be able to use water and sanitation services. In establishing these mechanisms, States must take care to avoid unintended discriminatory effects. In South Africa for example people can apply under indigent policies to gain access for free to a basket of essential services, including water and sanitation.38 This policy is essential to ensure that poor households can access services. However, the register is published so that all members of the public are able to see who is registered as indigent. It has been reported that people are reluctant or even chose not to apply because of the stigma attached to the status of being indigent. While public oversight of State subsidies is an important way of ensuring transparency, this should not lead to discriminatory effects of those eligible to receive a subsidy.

Issue 7: Transgender and intersex individuals 36 The Council of the town Ozd disconnected pumps and taps in August 2013 leading to a lack of drinking water for the local Roma population in particular. Thousands of people had to queue for hours in extreme temperatures to be able to obtain drinking water. See: http://www.errc.org/article/hungary-‐local-‐authority-‐disconnects-‐public-‐water-‐supplies-‐in-‐high-‐temperatures-‐blames-‐roma-‐for-‐misuse/4178, http://www.reuters.com/article/2013/08/07/hungary-‐roma-‐water-‐heat-‐idUSL6N0G82VH20130807 37 C. de Albuquerque, V. Roaf, On the right track -‐ Good practices in realising the rights to water and sanitation, p. 144 , 2012, available at: www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/SRWaterIndex.aspx See also: Presentation by Slovenia at the UN Members State’s Public Consultation on Good Practices held in Geneva in February 2011, available at: http://www2.ohchr.org/english/issues/water/Iexpert/docs/StateActors/Slovenia.pdf 38 See: National Framework for Municipal Indigent Services, Department of Provincial and Local Government, Republic of South Africa, http://www.cogta.gov.za/index.php/documents/doc_download/739-‐municipal-‐indigent-‐policy-‐national-‐framework-‐book1.html. The Indigent Policy of Mbombela provides that the register will be published after approval, see section 14.4 of the Policy, available at http://www.mbombela.gov.za/indigent%20policy.pdf

13

Transgender and intersex individuals often face exclusion, denial of access, verbal harassment and physical abuse and sometimes even get arrested when using public, sex-‐segregated sanitation facilities.39 States cannot dismiss this kind of discrimination as a social phenomenon over which they have no influence. Instead, States must take measures, and establish programmes, to combat stigmatisation and discrimination of these individuals, and anti-‐discrimination laws must be enforced.

4.2 ACCESS TO INFORMATION AND TRANSPARENCY In order to make legal frameworks effective, a thorough understanding of the existing infrastructure and management of water and sanitation service provision and the needs of the users is a prerequisite. The right of individuals and groups to access information must therefore be an integral part of legal frameworks that relate to water and sanitation service provision.40

A transparent government furthermore assures visibility and accessibility of information. Transparency establishes openness of information without the need for preceding requests, through for example dissemination of information on the radio, internet and official journals. Transparency should therefore be integrated throughout the entire legal framework, institutions and proceedings of the State.

Laws It is important to note that not all of the laws guaranteeing access to information will pertain only to water and sanitation service provision. More general provisions that speak to the principle of ensuring access to information in affairs that concern the general public are vital.

The Right to Information Act in India for example has been used by communities to demand information on programmes, project and budgets for water and sanitation service provision. This has enabled them to make claims much more efficiently.41

An example for access to information and transparency specifically in the water and sanitation sector is:

Brazil, Law on Water, Sanitation and Solid Waste Article 27: Users of [basic] public water, sanitation and solid waste services, in accordance with the legal, regulatory and contractual rules, are granted: I -‐ broad access to information on the services rendered; II -‐ previous knowledge of all their rights and duties and penalties to which they may be subject to; III -‐ access to a service delivery manual and user service manual, prepared by the service provider and approved by the corresponding regulatory entity; IV -‐ access to periodical reports on the quality of the services rendered. […]42

39 Stigma and the realization of the human right to water and sanitation, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, para. 40, 2012, A/HRC/21/42 40Committee on Economic, Social and Cultural Rights, General Comment No. 15, para. 48, 2002, E/C.12/2002/11 41 Reference to GTF case study 42Brazil, Law on Basic Sanitation, 2007. Portuguese original andofficialEnglishversionavailableat: http://www.cidades.gov.br/secretarias-‐nacionais/saneamento-‐ambiental/legislacao/leis/lei-‐do-‐saneamento-‐1/LeisSaneamentoIngles.pdf.

14

Regulations Data and information held by public authorities and third parties on water and sanitation provision and environment, which is of direct concern to stakeholders, should be publicly available. Information must be made easily accessible and understandable for everyone including for example for people who speak a minority language or are not able to read. An example from Honduras is:

Honduras, Decree No. 118-‐2003: Article 25: The users of the public potable water and sanitation services enjoy, inter alia, the following rights: […] 2) To receive information about the provision of the services, tariff system and method of payment, plans regarding expansion and improvement of services, and any other circumstances that may be of their interest, with sufficient detail to enable them to exercise their rights as users; […]43

Policy level documents States should make thorough assessments of the current transparency of governance and possibilities for people to access information. Policies and plans should be enacted to create more openness and improved accessibility of information. This for example includes the creation of mechanisms to ensure an effective and timely response to information requests, and to disseminate information through channels that are easily accessible to all. An example from Rwanda is:

Republic of Rwanda, National Policy and Strategy for Water Supply and Sanitation Services 7.6 Collective Sanitation […]Awareness campaigns to households on hygiene practice shall include information about investment and operating costs of sewerage in order to increase cost understanding and willingness to pay.44

The following policy example includes an assessment of gaps in information assessments and plans improvement:

South Africa, Cape Town, Water Supply and Sanitation Policy White Paper: Monitoring and information Information and decision support systems […] In order to successfully support a national basic water supply and sanitation programme the existing information systems in the country need to be upgraded to overcome various shortcomings. Information is dispersed amongst a range of organisations such as the former homelands, various Government Departments, Water Boards, consultants and non-‐government organisations, and is not readily available. Information is also duplicated and data inconsistencies exist. […] The information system must provide useful and accessible information for communities, Local Water Committees and Local Authorities, second tier water bodies i.e. Water Boards,

43Honduras, Decree No. 118-‐2003, Framework Law for the Drinking Water and Sanitation Sector, Unofficial translation. Original available at: http://faolex.fao.org/docs/pdf/hon41347.pdf. (Last visited 20 April 2011) 44Republic of Rwanda, National Policy and Strategy for Water Supply and Sanitation Services, 2010. P. 76, available at: http://www.ewsa.rw/Docs/National%20Policy%20and%20Strategy%20for%20water%20and%20sanitation.pdf

15

Provincial Governments, consultants, NGOs, and various other Central Government Departments. The principles of the proposed National Water Supply and Sanitation Information Management System will be:

§ The National System must be people-‐focused and service orientated. § Information should be accessible to communities and to all levels of the water industry.

Information available to different sectors should be useful, relevant, reliable and in an appropriate format (electronic formats and printed format).

§ The information system should make maximum use of the previous Department of Water Affairs and Forestry information systems and information from all other relevant sources in the country.[…]45

Common challenges Issue 1: De facto exclusion of persons from accessing information The way in which information should be made available heavily depends on the communities or individuals to be reached. For example, information dissemination through the internet may only reach a small number of richer and better educated people. Other people are not able to read, or do not speak the language in which the documents are made available. Regulation on the translation of information and awareness raising plans on the possibility of obtaining information is then crucial. An example:

Namibia, National Sanitation Strategy 2010/11 – 2014/15, Second Draft 200946 The Sanitation Balanced Scorecard, Theme C: Community Education and Participation Develop general IEC materials, incl. all media, e.g. pamphlets, posters, radio and TV programmes, booklets and manuals (tech & health); Translate IEC materials in local languages (considering illiterate communities) Develop participatory guidelines and IEC tools for rural and urban areas (design and languages for local context)

Issue 2: Ensuring that information is understandable Even the best system of making information accessible and transparent to the public will fail if people are unable to understand the information. Experts of all trades – in government and outside of government – have a tendency to use language that will be understood by other experts, but will be difficult to understand for non-‐experts. Access to information and transparency can therefore only be ensured when information is set out in clear terms. The United Kingdom has developed a style guide for all government websites to ensure this. It states for example:

1.5 Plain English – mandatory for all of GOV.UK [...] Use plain English. Don’t use formal or long words when easy or short ones will do. Use ‘buy’ instead of ‘purchase’, ‘help’ instead of ‘assist’, ‘about’ instead of ‘approximately’ and ‘like’ instead of ‘such as’.

45Republic of South Africa, Cape Town, Department of Water Affairs and Forestry, Water Supply and Sanitation Policy White Paper, November 1994. P. 30. 46Namibia National Sanitation Strategy 2010/11 – 2014/15, Second Draft 2009, p. 42-‐44. Available at: http://www.mawf.gov.na/Documents/Sanitation%20strategy.pdf. NOTE that the authors were only able to obtain a draft version of this strategy.

16

We also lose trust from our users if we write government ‘buzzwords’ and jargon. Often, these words are too general and vague and can lead to misinterpretation or empty, meaningless text. We can do without these words: [...]47

4.3 PARTICIPATION The human rights to water and sanitation can only be progressively realised in an effective manner when people become an integral part of these processes. Participation offers the possibility of social transformation, ensures better implementation and enhances the effectiveness and sustainability of interventions.

All decision-‐making and actions that may affect the exercise of individual’s rights to water and sanitation must provide for meaningful participation opportunities. This includes that people must be aware of the possibilities to participate, and participation opportunities must be arranged at times and locations convenient for people to attend.48 Participation must be an integral part of any policy, programme or strategy concerning water or sanitation.49

Laws At the level of laws, it should be ensured that participation takes place prior to finalising any decisions and that input from users is taken into account.

São Tomé and Principe, Law No. 10/1999 Article 7: Principle of Participation 1. Citizens and various social groups shall be involved in the formulation and implementation of environment and development policies. 2. The State must ensure the participation of citizens and stakeholders in the decision-‐making process.50

Additionally, in the process of developing any laws, regulations or policy level instruments, active and meaningful participation must be guaranteed.

Regulations Participation on decisions concerning service levels, maintenance and operation of water and sanitation services and tariffs is required

States must furthermore stimulate participation of all stakeholders affected by decision-‐making. Special efforts or affirmative action will therefore often be required to ensure that all, including marginalised and vulnerable groups and persons with particular needs, are afforded the realistic option to participate in decision making processes.

An example for consultative management of communal water points is:

47 See the Style guide of the UK Government for all websites using the domain .gov.uk, available at: https://www.gov.uk/designprinciples/styleguide 48 C. de Albuquerque, V. Roaf, On the right track – Good practices in realising the rights to water and sanitation, p. 31, 2012 49Committee on Economic, Social and Cultural Rights, General Comment No. 15, para. 48, 2002, E/C.12/2002/11 50Law on the Environment, Law No. 10/1999, available at: http://www.anp-‐stp.gov.st/pt/wp-‐content/uploads/2009/11/Lei-‐10.99-‐Lei-‐Base-‐Ambiente.pdf

17

Kenya, Model Water Services Regulations, Section 71: Communal based supplies (1) The Water Service Provider shall install a communal water kiosk for the provision of water supply services to several consumers at a location it considers appropriate, provided that a majority of consumers, who in the opinion of the Water Service Provider constitute a substantial majority, and to whom water services will be provided by the Water Services Provider has been consulted by him or the Water Services Board. (2) The Water Service Provider may provide communal water supply services through a communal installation designed to provide a controlled and measurable volume of water to several consumers and commercially managed in consultation with the community. (3) The Water Service Provider shall ensure that the water tariffs charged at such a water point shall be appropriate for the consumers and shall be published in a prominent place at the water point.51

Policy level documents Governments must develop programmes and policies that guarantee and encourage participation of all persons affected by a decision. To ensure that certain people are not left out, States may emphasise the need to include those people in their policies.

An example includes Peru’s National Programme for Rural Water and Sanitation (PRONASAR), which aims to implement participatory management structures to meet the needs of poor, marginalised and isolated rural populations.52 For this purpose, it has defined strategies for service provision in rural areas and small towns. The strategy for rural areas states the following with respect to community participation:

e) Community Participation The community participates in the entire project cycle, defines its needs in the choice of the technology, level of service and commitment to pay (AOM) [AOM stands for administration, operation and maintenance], identification of the family fee based on their ability to pay, choice of governing board, assistance for communal training and health education, in the execution of the work by the governing board, culminating in post implementation, with the understanding that the active participation of the people is the best way to ensure the sustainability of services. The governing boards assume administration, operation and management (AOM) of services in each locality and ensure compliance with the family membership fee and other income they can generate. During the intervention, [the governing boards] participate together with the population and in coordination with the District Municipalities in the training processes for managing sanitation services and health education.53

51 Kenya, Section 71 of Model Water Services Regulations, Water Services Regulatory Board Kenya, 2002. Available at: http://www.wasreb.go.ke/index2.php?option=com_docman&task=doc_view&gid=25&Itemid=109 52 C. de Albuquerque, V. Roaf, On the right track -‐ Good practices in realising the rights to water and sanitation, p. 62, 2012, available at www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/SRWaterIndex.aspx, see also: PRONOSAR, at: http://www.vivienda.gob.pe/pronasar/estrategias.html 53 Peru, Programa National de Agua y Saneamiento Rural (national programme for rural water and sanitation), PRONASAR, Strategy for the direct intervention model for the provision of water and sanitation – rural areas, available at: http://www.vivienda.gob.pe/pronasar/estrategias.html

18

The National Drinking Water Policy of Pakistan highlights the particular role of women in domestic water provision and hygiene and therefore demands in particular women’s participation:

4. Policy Principles […] (iv) Recognizing the fact that women are the main providers of domestic waters supply and maintainers of hygienic home environment, their participation in planning, implementation, monitoring and operation and maintenance of water supply systems will be ensured; [...] 6.5 Community Participation and Empowerment (i) Participation communities, especially women and children, in planning, implementation, monitoring and operations and maintenance of water supply systems will be encouraged to promote community ownership and empowerment as well as sustainability; (iii) Community mobilization units will be established in water supply related institutions; (iv) Special focus will be placed on gender training programs for the staff of water supply related institutions at all levels so that they are able to respond in a sensitive manner to the gender differentiated needs in the drinking water sector; 54

Common challenges Issue 1: Unacceptability of service provision If participation is not taken into account, States often misunderstand the barriers to access, and fail to find sensible solutions to overcome those barriers.55 Without participation, chosen solutions might be unacceptable or unsuitable for users. Participation and community engagement can in turn help to build acceptability for new approaches and technologies. In Tuvalu for instance, freshwater is a scarce resource and therefore compost toilets are a sensible technology to use, to avoid groundwater pollution. A project that sought to establish this technology had to first engage with communities to win their acceptance of this new technology, which was initially perceived as unhygienic.56

Issue 2: Barriers to participation Even when possibilities to participate exist and are officially arranged, people may still miss out on these opportunities for various reasons. First, when people are not aware of the fact that they are able to participate, they will obviously not make an effort to do so. Also, when people are not aware of the actual influence or change they may generate, they will likely not make the effort to participate. Furthermore, when occasions for participation are only announced at very short notice, or scheduled at inconvenient times, for example during working hours or during the harvesting season, people will not be able to attend or when an opportunity to participate requires prior online registration and the community in question is mainly illiterate and has no access to the internet. Therefore, regulations and policy level documents must provide for guidelines to follow when organising possibilities to participate.

54Pakistan, National Drinking Water Policy, September 2009, available at: http://www.environment.gov.pk/NEP/DWPolicyOct2009.pdf 55 Sustainability in the realisation of the human rights to water and sanitation, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, para. 48, 2013, A/HRC/24/44 56Mid-‐Term Report of the Tuvalu GEF Pacific IWRM Demonstration Project: Eco-‐Sanitation Demonstration IWRM Project, GEF Pacific IWRM Tuvalu Demonstration Project Team, p. 12, available at: http://www.pacific-‐iwrm.org/mid-‐term-‐reports/GEF-‐Pacific-‐IWRM-‐Tuvalu-‐Draft-‐Mid-‐Term-‐Report.pdf

19

4.4 ACCOUNTABILITY Accountability has two aspects: Firstly, accountability demands that individuals or groups who consider that their rights have been violated have access to courts or other independent review mechanisms to have their complaint heard and resolved (right to a remedy). Secondly, accountability speaks to the mechanisms used to establish oversight and control between the different – public and private – actors in water and sanitation service provision.

• The right to a remedy must be enshrined in law and must ensure that everyone can access competent independent review mechanisms, particularly courts. Remedies provided for should include restitution, compensation, legally binding assurances of non-‐repetition and corrective action. 57

• To build accountability into the system of water and sanitation service provision, clear institutional mandates must be defined. Actions taken or decisions made under those mandates must be accountable and regulated through a system of oversight responsibilities.58 Where actors fail to meet their duties, oversight institutions must enforce rules – and have mechanisms at hand to do so. This is especially relevant when water and sanitation service provision is decentralised to avoid a fragmentation of roles and responsibilities and a lack of coordination.

Laws The right to a remedy demands that every individual or group must be able to enforce their rights against the State or a private actor. Enforcement can take place at different levels: Firstly, complaints procedures must be established at the level of service provision to ensure that users can hold service providers to account if problems arise. Secondly, quasi-‐judicial institutions such as national human right institutions or ombudspersons should be given a role in resolving complaints that cannot be resolved directly between service providers and users, but where a solution might be found without the involvement of courts. Thirdly, everybody must have the right to bring complaints before competent – civil or administrative – courts to seek a legally binding resolution of a conflict.

An example for the establishment of complaint procedures at the level of service providers is:

Colombia, Law 142 establishing the regime for public household services Art. 152: The right to petition and appeal The essence of the contract of public services is that the subscriber or user can present to the company petitions, complaints, or appeals relating to the contract of public services. 59

An example for the establishment of complaint procedures at the level of the regulatory authority is:

Kenya, Water Act 2002 Section 47: The Regulatory Board shall have the following powers and functions […]

57 C. de Albuquerque, V. Roaf, On the right track -‐ Good practices in realising the rights to water and sanitation, p. 177, 2012, available at www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/SRWaterIndex.aspx 58 C. de Albuquerque, V. Roaf, On the right track -‐ Good practices in realising the rights to water and sanitation, p. 206, 2012, available at www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/SRWaterIndex.aspx 59 Colombia, Law 142 establishing the regime for public household services, 1994, available at: http://www.aguasdemanizales.com.co/LinkClick.aspx?fileticket=Ty3iKjUsguo%3D&tabid=652

20

(c) to establish procedures for handling complaints made by consumers against licensees;60

Iceland has established a parliamentary ombudsperson with the capacity to receive complaints and make recommendations in cases involving the State, public administration and private parties vested with public authority:

Iceland, Act No. 85/1997 on the Althing Ombudsman Article 4 Complaint to the Althing Ombudsman: The Ombudsman may take up a case following a complaint. Any person who feels unjustly treated by any of those indicated in paras. 1 and 2 of Article 3 can complain thereof to the Ombudsman. A person who has been deprived of his or her liberty has the right to lodge a complaint with the Ombudsman in a sealed letter.61

With respect to accountability between the different actors involved in water and sanitation service provision, clear institutional mandates must be defined and these mandates must be accountable to institutions tasked with oversight functions. South Africa’s Water Services Act contains a chapter on monitoring and intervention with reporting obligations of water service obligations and the possibility of intervention by the responsible Minister of Water Affairs and Forestry, including the assumption of functions, in case of unsatisfactory performance:

Art. 62: Monitoring of water services institutions (1) The Minister [of Water Affairs and Forestry] and any relevant Province must monitor the performance of every water services institution in order to ensure -‐ (a) compliance with all applicable national standards prescribed under this Act; (b) compliance with all norms and standards for tariffs prescribed under this Act; and (c) compliance with every applicable development plan, policy statement or business plan adopted in terms of this Act. (2) Every water services institution must – (a) furnish such information as maybe required by the Minister after consultation with the Minister for Provincial Affairs and Constitutional Development; and (b) allow the Minister access to its books, records and physical assets to the extent necessary for the Minister to carry out the monitoring functions contemplated in subsection (1). Art. 63: Intervention (1) If a water services authority has not effectively performed any function imposed on it by or under this Act, the Minister may, in consultation with the Minister for Provincial Affairs and Constitutional Development, request the relevant Province to intervene in terms of section 139 of the Constitution. [...]62

60Kenya, the Water Act 2002, No. 8 of 2002. Available at: http://www.water.go.ke/index.php?option=com_docman&task=cat_view&gid=48&Itemid=62 61 “Althing” refers to the Parliament of Iceland. The jurisdiction of the Ombudsman is set out in Article 3, the powers in Art. 10 of the Act. The Act is available at: http://buff.ly/15vB0kM 62 South Africa, Water Services Act, 1997, available at: http://www.dwaf.gov.za/Documents/Legislature/a108-‐97.pdf

21

Regulations In order to guarantee monitoring and the compliance with the human rights to water and sanitation, regulations must make room for independent monitoring mechanisms by the different organs of the State and independent monitoring bodies to keep track of performances. Whenever an agency or body has not effectively performed a function imposed on it, another level of government, or the judiciary must be able to intervene. Regulations furthermore serve to set out clear institutional mechanisms to ensure individual complaints are heard.

For example, in Ghana the Public Utilities Regulatory Commission is an independent body set up to regulate and oversee water services to consumers. One of its functions is to receive and investigate complaints and settle disputes between users and the public utility:63

Public Utilities (Complaints Procedures) Regulations 4 (1) the Commission shall make a preliminary enquiry into the complaint. (2) If the Commission considers that the complaint may be mediated upon and settled, it shall invite the parties concerned and initiate a settlement of the complaint. (3) If the complaint cannot be settled, the commission shall follow the procedure for a formal hearing of the complaint as provided in these regulations.64

The law which delegates the powers to the Commission provides for the enforcement powers of the Commission:

Public Utilities Regulatory Commission Act65 32. Enforcement of Decisions of the Commission Where, the Commission, whether before or after any investigation, makes any decision or gives any direction, requiring any person to do or desist from doing any act, and there is failure on the part of the person to comply with the decision or direction, within a specified period, if any, or within a reasonable time, the Commission may apply to the High Court for the enforcement of the decision or direction.

Policy level documents Accountability starts with monitoring the actions and progress made by the government. This involves the collection of data on progress, as well as the examination of underlying institutional structures.66 Policy level documents should further plan to improve oversight structures and accountability mechanisms through which individuals can seek remedies.

In the United Kingdom, the Secretary of State for Constitutional Affairs has issued a White Paper that looks at how dispute resolution between citizens and the State can be improved. The White Paper is part of the UK public sector reform programme. It first sets out the current challenges related to

63For more information about the Commission, see: http://www.purc.com.gh/purc/purc 64Ghana, Public Utilities (Complaints Procedures) Regulations, LI 1665, 1999. Available at: http://www.purc.com.gh/purc/node/108 65Ghana, Public Utilities Regulatory Commission Act 1997 (Act 538). Available at: http://www.purc.com.gh/purc/sites/default/files/act538.pdf 66 C. de Albuquerque, V. Roaf, On the right track -‐ Good practices in realising the rights to water and sanitation, p. 179, 2012, available at www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/SRWaterIndex.aspx

22

access to justice for citizens, and then outlines strategies to improve justice and complaint mechanisms.67

Whitepaper: Transforming Public Services: Complaints, Redress and Tribunals68 2 Proportionate Dispute Resolution [...] 2.2Our strategy turns on its head the Department’s traditional emphasis first on courts, judges and court procedure, and second on legal aid to pay mainly for litigation lawyers. It starts instead with the real world problems people face. The aim is to develop a range of policies and services that, so far as possible, will help people to avoid problems and legal disputes in the first place; and where they cannot, provides tailored solutions to resolve the dispute as quickly and cost effectively as possible. It can be summed up as ‘Proportionate Dispute Resolution’. 2.3 We want to: • minimise the risk of people facing legal problems by ensuring that the framework of law defining people’s rights and responsibilities is as fair, simple and clear as possible, and that State agencies, administering systems like tax and benefits, make better decisions and give clearer explanations; • improve people’s understanding of their rights and responsibilities, and the information available to them about what they can do and where they can go for help when problems do arise. This will help people to decide how to deal with the problem themselves if they can, and ensure they get the advice and other services they need if they cannot; • ensure that people have ready access to early and appropriate advice and assistance when they need it, so that problems can be solved and potential disputes nipped in the bud long before they escalate into formal legal proceedings; • promote the development of a range of tailored dispute resolution services, so that different types of dispute can be resolved fairly, quickly, efficiently and effectively, without recourse to the expense and formality of courts and tribunals where this is not necessary; • but also deliver cost-‐effective court and tribunal services, that are better targeted on those cases where a hearing is the best option for resolving the dispute or enforcing the outcome.

Common challenges Issue 1: Devolution of powers and decentralisation Responsibilities in water and sanitation service provision are often divided between a range of different actors. Especially in case of decentralisation, a system of accountability based on clear mandates is crucial. Decentralisation often leads to greater participation and knowledge of local conditions, as services are brought closer to the communities they serve.69 However, local authorities

67Whitepaper: Transforming Public Services: Complaints, Redress and Tribunals. Presented to Parliament by the Secretary of State for Constitutional Affairs and Lord Chancellor by Command of Her Majesty, July 2004. Available at: http://webarchive.nationalarchives.gov.uk/+/http:/www.dca.gov.uk/pubs/adminjust/transformfull.pdf 68Whitepaper: Transforming Public Services: Complaints, Redress and Tribunals. Presented to Parliament by the Secretary of State for Constitutional Affairs and Lord Chancellor by Command of Her Majesty, July 2004. Available at: http://webarchive.nationalarchives.gov.uk/+/http:/www.dca.gov.uk/pubs/adminjust/transformfull.pdf 69WaterAid, Financing Water and Sanitation at Local Levels, 2008. Available at: http://www.wateraid.org/~/media/Publications/financing-‐water-‐sanitation-‐local-‐levels.pdf

23

often do not have the capacity and resources to comply fully with all obligations that the human rights to water and sanitation entail. They are also often less familiar than central government levels with – international or national – human rights law. Therefore, any decentralisation of service provision should be accompanied with the establishment of clear accountability mechanisms and ensuring that local authorities have adequate capacity and resources. The responsibility for monitoring and establishment of minimum standards should be retained at the central level. Central levels of administration should train local authorities in how to manage budgets, tariffs and operation and maintenance of facilities, and systems for providing information and opportunities for participation.70

Issue 2: Disconnections Legal frameworks must put adequate procedural safeguards in place prior to any disconnection. It is crucial that users are able to seek remedies in case they feel that their human rights to water or sanitation are violated. Users must be given the chance to pay arrears or – if they are unable to pay – must receive services free of charge.

South Africa, Water Services Act, Section 4: (3) Procedures for the limitation or discontinuation of water services must— (a) be fair and equitable; (b) provide for reasonable notice of intention to limit or discontinue water services and for an opportunity to make representations, unless— (i) other consumers would be prejudiced: (ii) there is an emergency situation; or (iii ) the consumer has interfered with a limited or discontinued service; […]71

70 C. de Albuquerque, V. Roaf, On the right track -‐ Good practices in realising the rights to water and sanitation, p. 206, 2012, available at www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/SRWaterIndex.aspx 71 South Africa, Section 4 of Water Services Act, available at: http://www.info.gov.za/view/DownloadFileAction?id=70766

Handbook HRWS- Legal Framework -part 1 - Rights to … · 2014-01-17 ·...

Documents

Transcript of Handbook HRWS- Legal Framework -part 1 - Rights to … · 2014-01-17 ·...