THE saying that water is life is not just a saying. Water is a human necessity for the enjoyment of the right to health among other fundamental rights. Long before the COVID-19 outbreak, a High Court judge made the following remark in a judgment on Harare water: “Water has become the cry of the ‘people’ of Harare. It is on everyone’s lips. Residents of the town have no access to clean drinking water. Taps have run dry in this town for a number of years now. Pipe bursts are the order of the day. Diseases like cholera and typhoid have wreaked havoc in this town.” These sentiments are correspondingly applicable to the current water situation in parts of Masvingo, Bulawayo and Hwange among other cities and towns dotted across the country. Thousands of residents are finding it grim to access the precious liquid during the COVID-19-induced lockdown. On April 13, 2020 NewsDay reported that Bulawayo City Council was extending water rationing in the midst of the lockdown.
Urgent chamber applications
Chief Justice Luke Malaba through Practice Direction 1 of 2020, suspended court hearings and the filing of new cases during the lockdown. He however highlighted that urgent applications, initial remands and bail application would be entertained during the period. As a result of water scarcity, residents across the country have been seen queuing for water at boreholes and other water points during the lockdown. It is a fact that majority of these citizens have not been observing the social distance rule envisaged in Statutory Instrument 83 of 2020. That people have not be wearing COVID-19 protective gloves and face masks is also indubitable. The risk of contracting and spreading the pandemic is fearsomely high. It is most unfortunate that women and children are most exposed. Local authorities have as a result been hauled to the courts for failing to supply adequate water to residents during the lockdown. Some of these ‘urgent applications’ to compel local authorities have been granted whilst others have been dismissed.
An application by Combined Harare Residents Association to compel the government and Harare City Council to ensure there is safe, constant and adequate supply of clean water during the lockdown was granted by Justice Happias Zhou early this month. The city council was also ordered to provide marshals to monitor compliance with the social distancing rule at water points. On April 8, 2020, Bulawayo High Court Justice Evangelista Kabasa dismissed the application by Hwange residents to compel Hwange Colliery Company Limited, Zimbabwe National Water Authority and the government to provide adequate water during the lockdown. Whilst acknowledging the importance of the right to water, the High Court dismissed the case for the reason that it was ‘not urgent’ in terms of the court rules.
Masvingo United Ratepayers and Residents Alliance filed an ‘urgent application’ at Masvingo High Court to compel Masvingo City Council and the government to provide adequate water during the lockdown. Justice Neville Wamambo is yet to hand down the judgment.
Water as a human right.
On July 28, 2010 the United Nations General Assembly recognised the right to water as a human right through its Resolution 64/292. Zimbabwe is a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the United Nations Convention on the Rights of The Child (CRC). Both international instruments recognise the right to water.
Unfortunately, the Lanchaster House Constitution which was replaced by the transformative 2013 Constitution did not recognise water as a right. Commendably, Section 78 of the 2013 Constitution protects the right to water. It provides that every person has the right to safe, clean and potable water. Section 78 imposes an obligation upon the government to take measures to achieve the progressive realisation of the right to water. The government is empowered to delegate the responsibility to supply water to local authorities. This explains why city councils and the government are being jointly sued by residents.
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Section 276 (2) (b) of the Constitution empowers local authorities to levy rates and taxes in order to raise revenue for service provision. This entails that costs committed for providing a safe water supply must be recovered from revenue collected by the local authorities. Most, if not all city councils recently hiked rates. In as much as local authorities collect revenue from residents, it remains the responsibility of the government to ensure local authorities are able to provide clean, safe and adequate water. The capacity of city councils is therefore dependent on the government and consumers providing them with the resources to do so.
If the local authorities are not provided with all necessary tools to carry out their mandate, they will fail to do so. Residents, private companies, non-governmental organisations, government departments and all water consuming institutions must therefore regularly pay rates to capacitate local authorities.
What is adequate water?
There seems to be no settled amount of water that is universally accepted as adequate water. According to the World Health Organisation (WHO), between 50 and 100 litres of water per person per day are needed to ensure basic needs are met. The United Nations Development Programme sets the minimum at 20 litres per person per day. In the case of Mazibuko and Others v City of Johannesburg and Others, the Constitutional Court of South Africa found that 25 litres of water per person, per day is a reasonable amount. In Hove v City of Harare, Justice Esther Muremba remarked that ‘a minimum of 20 – 50 litres of safe water’ per person per day is adequate to meet basic needs. It may therefore be concluded that an individual requires not less than 20 litres of water to meet basic daily needs.
Conclusion
With full support of the government, local authorities must ensure that residents progressively realise the right to water during the COVID-19-induced lockdown. All consumers are equally called upon to pay rates to capacitate local authorities. Every person, including the government and local authorities ought to be reminded that COVID-19 is real. Cholera and typhoid are killer diseases too. Be hygienic and regularly wash your hands using the limited available resources to stay safe.
Fidelicy Nyamukondiwa is a legal columnist who writes here in his personal capacity. Contactable on [email protected] https://twitter.com/FidelNyams
