Lesson from South African court ruling on provision of water

In a landmark case involving the right to water, South Africa’s highest court ruled rule on October 8, last year, in favour of the city of Johannesburg against residents’ demands.

The court ruled that the installation of prepaid water meters in Phiri, a low-income town in the city’s Soweto area, was neither unlawful nor discriminatory.

The court also declined to define how much water is sufficient for an individual’s daily use, leaving this determination to other branches of government.

But this verdict was troubling because South Africa is the first country in the world to guarantee the right to water in its constitution and to make it actionable in court.

Also, the ruling dampens the hope that perhaps domestic courts could help speed up action on the fulfilment of economic and social rights for the poor and other disadvantaged individuals.

But more importantly, the ruling provides vital lessons for Kenya on the implementation and legal implications of economic and social rights contained in the just ratified constitution, including right to clean and safe water in adequate quantities as contained in the Bill of Rights.

Rights Not Immediate

Even more intriguing is the presumption by many Kenyans that some of these rights would be immediate with the adoption of the new constitution.

However, Economic and Social Rights Centre Director Odindo Opiata says some of the rights would not be immediate and on demand.

"The South African court ruling is an ideal illustration on how courts are likely to give effect to economic, social and cultural rights in Kenya," he says.

The Constitutional Court of South Africa gave its verdict, closing the case that had been commenced by the Coalition Against Water Privatisation on behalf of persons challenging the installation of prepaid water meters in Phiri.

They also challenged the limitation imposed by Johannesburg on free basic water to 25 litres per person per day. Those who exhausted their allotment of free water before the end of the month had to pay for more water.