The east African nation of Kenya is currently in the process of considering a new constitution, and one issue is the inclusion of a right to water. A harmonised draft constitution was prepared by a Committee of Experts and released for public comment on 17 November 2009, and it included a provision on water in Chapter 6, the Bill of Rights. Specifically, draft Section 66 provides that “Every person has the right to clean and safe water in adequate quantities.” The draft document is currently being reviewed by a Parliamentary Select Committee, after which the constitution will be sent to the full Parliament and then to the voters in approximately March 2010. It is uncertain whether the right to water will remain in the draft constitution through adoption, although there is some reason to believe it will be struck.
If Section 66 were to become part of the Kenyan constitution, there are a number of questions about how it would be implemented or enforced. Notably, the language of Section 66 has two components: a water quality requirement (“clean and safe”); and a water quantity requirement (“in adequate quantities”). Regarding water quality, what constitutes clean and safe water is always subject to debate and is commonly determined in legal systems by balancing exposure-based health assessments and economic cost-benefit analyses. These are difficult questions that normally require working out through an administrative/regulatory process that may be inconsistent with the more rigid jurisprudence of constitutional law.
Section 66 would create an equal amount of uncertainty for water quantity. For example, what is an “adequate quantity” of water per person and how would it be determined? What is the relationship, if any, between access to that quantity from an urban water utility system and payment of a share of the expenses of the system? How would an adequate quantity be guaranteed to rural residents who are not connected to an urban water utility system? How would the constitutional right to water impact the conflicting claims of different water users within and between agriculture, cities and industry? As might be expected, one of the criticisms of Section 66 is that as drafted it may be largely unenforceable.
It may be instructive to examine the interpretation of a similar provision located in Section 27 of the constitution of South Africa. There, the Constitutional Court has decided in a series of cases that Section 27 requires the government to take reasonable measures to progressively realize water access, within available resources, but does not create a directly enforceable right to immediate delivery of water. On 8 October 2009, the court decided its most recent case, In the Matter of Lindiwe Mazibuko et al., Case CCT 39/09, regarding whether the constitutional right to water was violated by the actions of the City of Johannesburg to limit the free basic water supply to 6 kilolitres per connection per month in certain areas. Citing the context-specific nature of “sufficient water” supplies, the primary responsibility of the legislature for implementation of Section 27, and the overall reasonableness of the city water allocation, the Constitutional Court refused to overturn the city’s water utility policies. This is an excellent approach for interpreting a constitutional right to water.
The South African and other histories suggest, at a minimum, that if Kenya were to include Section 66 in its new constitution, it can expect significant administrative and legal challenges in the interpretation and implementation of that provision. If Kenya were to interpret Section 66 as a statement of the government’s dedication to improving water access, it may be beneficial, but if it were interpreted as a requirement to supply a firm quantity or quality of water as determined by the courts, it would likely constitute a barrier to progressively improving water access. Inclusion of Section 66 might mean that increased attention will be paid to water resources, but that attention may be slowed by continuing economic constraints. Kenya’s citizens may be better off if the constitution focuses less on the rhetoric of a right to water and more on efficient water management and improving the conditions for public and private investment in the nation’s water infrastructure.
Private Water Law 
Very well written synopsis. I had not looked at this issue before in light of a more “enabling constitutional” approach as opposed to the traditional direct approach. It actually makes some sense and provides some clear advantages to ultimately getting where you really need to be. Thanks for sharing.