Quarterly Bulletin

             The question of whether or not Zambia needs a new Constitution and the manner in which such a Constitution should be arrived at has brought up a lot of controversies in the past few years amongst political players and civil society at large. In 2007, with the controversial NCC Act, we now have a working group to review the Mung’omba Draft Constitution Bill (2005) and the Interim Report. Of the many desired changes that citizens have been advocating for is the expansion of the Bill of Rights to include Economic, Social and Cultural Rights (ESCR) of health, education, food, water and sanitation, shelter, clean environment, etc. Nancy Mukumbuta of WaterAid in this article underscores the importance of the rights to water and sanitation emphasising that these rights cannot be taken away.

The National Constitutional Conference (NCC) has reconvened and debates have resumed on what should and should not be included in the new constitution. Central to Civil Society’s demands is the need to include Economic, Social and Cultural Rights (ESCR) in the Bill of Rights. Whilst the importance of civil and political rights dominates the national debates on the new constitution, the inclusion of ESCR appears to be the lone voice of civil society organizations and a few government institutions.

Understandably, the larger percentage of the Zambian population including some very educated citizens do not know what ESCR are, their content and the obligation of the government to respect and fulfill these rights.

ESCR are those rights which relate to the social conditions required to meet basic human needs. In the case of Zambia, these include the right to food, shelter, education, water and sanitation, health, employment, culture, and a clean environment.

ESCR are enshrined in the United Nations International Convention on Economic, Social and Cultural Rights (ICESCR) which is a multilateral treaty adopted by the United Nations General Assembly in 1966 and came into force ten years later in 1976. It commits its parties to work towards the granting of ESCR to individuals.

Twenty-three years later in 1999, the right to water was recognized as a “fundamental right” by the General Assembly of the United Nations. It was described in General Comment No. 15 on the right to water adopted in 2002 by the Committee of ESCR. The Committee stressed the fact that water was a limited natural resource and a public commodity fundamental to life and health. It further noted that lack of access to adequate sanitation was a primary cause of water contamination and diseases linked   to   water.   The continuing contamination, depletion and unequal distribution of water resources was said to be worsening the existing poverty situation. The General Comment emphasizes the duty of State Parties to progressively realize the right to water.

Zambia is a signatory to the UNICESCR which it ratified in 1984. Zambia has also signed and ratified a number of international conventions and instruments which provide for access to water and sanitation as a human right. At the national level, several pieces of policies, strategies, legislation, and programmes have over the past eighteen years provided and continue to provide for access to water and sanitation by all citizens, namely;

• The Local Government Act of 1991;
• The National Water Policy of 1994;
• The Water Supply and Sanitation Act of 1997;
• The Strategy and Institutional Framework for the Water and Sanitation Sector of 1995;
• The National Environmental Strategy of 1998;
• The Community Water Supply and Sanitation Strategy of 2000;
• Mainstreaming Gender in Water Supply and Sanitation Sector of 2000;
• The Water Resource Action Programme (WRAP);
• The Water, Sanitation and Health Education (WASHE) Strategy of 1996;
• The Millennium Development Goals (MDGs) of 2000;
• The Poverty Reduction Strategy Paper (PRSP) of 2002;
• The Fifth National Development Plan (FNDP) of 2006;
• The National Rural Water Supply and Sanitation Programme (NRWSSP) of 2007.

Most relevant to this discussion is the current Zambian constitution, which defines the right to water and sanitation under Part IX, “Directive Principles of State Policy” in Article 112, which states that the government shall endeavour to provide: clean and safe water; equitable educational opportunities in all fields and at all levels; adequate medical and health facilities; decent shelter for all persons; and development of a person’s culture, tradition or language that is not inconsistent with the Constitution.

However, despite these numerous provisions for citizens to access safe water and proper sanitation, 47% of the Zambian population still has no access to safe water and 77% have no access to proper sanitation. What has gone wrong?

Most international conventions and instruments are not legally binding on signatory parties but only provide a guide and to fulfill what is contained. Furthermore, the Zambian constitution clearly states, through the “Directive Principles of State Policy,” that the government cannot be sued for denying people, for example, their right to water and sanitation. It only provides for the government to consider the citizens’ right to water and sanitation in policy formulation and implementation where resources are available to do so.

It is clear that while the Government has been committed to formulating numerous policies, strategies, legal frameworks, programmes, and plans, implementation has been poor. The Government realises the negative consequences of not providing safe water and proper sanitation. The Government also realises the benefits of increasing budget allocations, and still spending to the sector has not been prioritized.

Malaria, diarrhea, and other water borne diseases continue to be the highest causes of death especially amongst children in Zambia. According to UNICEF (2008), Zambia has one of the highest under-five mortality rates in the world at 182/1,000 live births with diarrhea accounting for 1/5 of all deaths.

In rural areas, women and children are forced to walk long distances in search of water, which is not always safe for drinking. The time spent collecting water leaves them with very little time to engage in other economically productive activities, further exacerbating their status of  poverty.

In addition, they have the additional burden of caring for members of the family who fall sick as a result of poor hygiene resulting from unsafe water and poor sanitation. With HIV and AIDS, the burden of looking after the sick and the need for safe water and sanitation facilities has increased.  

The girl child, whose fate is determined by her sex and gender roles, spends her time collecting water instead of going to school and where she is given an opportunity to go to school,  is often absent due to lack of proper sanitation facilities in schools.

The situation is no better in most of the peri-urban areas. The proximity of shallow wells and pit latrines in high density peri-urban areas is fertile ground for diseases. Poor drainage and unplanned solid waste disposal compound the health situation further. In these areas, provision of water and sanitation services is almost non-existent.

No one is expecting the government to provide safe water and proper sanitation to all its citizens   at   the   same  time. The attainment of the Millennium Development Goal (MDG) target on water and sanitation is a good starting point. The Zambian government has committed itself to ensuring the MDG target of reducing by half the proportion of the population without access to safe water and adequate sanitation is attained by 2015. Current efforts, including the recently launched NRWSSP, are aimed at reaching this target. What the Government needs to do now is allocate and disburse more resources to reach the target and ensure that the resources are utilized accordingly.

Addressing water and sanitation issues has long-term socioeconomic benefits. It is believed that Water Supply and Sanitation (WSS) are key to the achievement of the other MDGs and form the basis of all other development. For example, without access to WSS, time and energy are lost searching for and collecting water, poor health and frequent illness lead to lower productivity and lower income, household time, energy and finances are consumed by coping with frequent illness and child malnutrition is rampant, worsened by water related illnesses.

All these factors will consequently affect government’s efforts to eradicate extreme poverty and hunger (MDG Goal 1). However, with more money allocated to the water and sanitation sector, people will have access to WSS and better health will lead to greater capacity to develop and maintain livelihoods. In addition, time and energy can be reallocated for productive activities and/or self employment.  By ensuring people’s right to safe water and adequate sanitation the Government could reduce spending in the health sector, thereby releasing money which could be channelled to addressing other neglected ESCR of its citizens.

Unfortunately, Zambia is lagging behind in meeting its MDG target on water and sanitation. This is because the sector continues to be given low priority in terms of funding. The 2008 budget has allocated K399.8 billion kwacha to improve access to safe drinking water. This is only 3% of the total budget (K13,76 trillion) and there are no guarantees that the whole amount will be disbursed for the intended purpose.

How then can the 47% and 77% of the population without access to safe water and proper sanitation, respectively, ensure that the Government implements its many policies, strategies, legislation, programmes and plans, adheres to its commitments to achieve the MDG targets and disburses the allocated budgets to the water and sanitation sector? 

This can be done by ensuring the right to access safe water and proper  sanitation  is  enshrined in the Bill of Rights.  It is only then that citizens can hold the Government accountable by seeking legal redress if this right is denied due to misplaced priorities in implementation and expenditure of public funds. Including ESCR in the Bill of Rights will provide for citizens to make claims in court where the Government is not fulfilling its constitutional obligations.

Enshrining ESCR into the Bill of Rights will guarantee that all funds allocated to the water and sanitation sector can only be used for the intended purpose and cannot be diverted. This is the only way the Government will become more transparent and accountable in the use of public resources.    

Enshrining ESCR in the Bill or Rights is the only way that the Zambian citizens can claim their right to safe water and proper sanitation. It is the only way that Zambian citizens can begin to assume some human dignity and begin to live healthier lives. 

Nancy Mukumbuta
WaterAid Zambia
Lusaka