The Right to Adequate Water - Essay Example

The Right to Adequate Water The Right to Adequate Water Is there a human right to adequate or sufficient water? If so, then what is the right’s normative ground, its content and scope, as well as how might this differ in constitutional, international and domestic law, together with the policy of states? These were the few issues that were, in 2009, put before the South Africa’s Constitutional Court in the “Phiri Case” or otherwise known as Mazibuko v. City of Johannesburg, the nation’s first test case on the right to water. This court case was interesting due to a couple of reasons (Danchin 2010, p. 1). First, it was the most recent case in SA’s closely monitored social and economic rights jurisprudence after decisions such as Olivia Road (2008), Modderklip (2005), Treatment Action Campaign (2002), Grootboom (2001) and Soobramoney (1998). Second, the case sheds essential light on the argument over whether the social and economic rights have least lawful content or a “minimum core” as dictated by the UN Committee of Social, Economic and Cultural Rights, in the General Comment No. 3 of 1990. Third and finally, the case offers a helpful case study for both the potential, as well as the limits of strategic public concern litigation, together with the enforcement and justiciability of social and economic rights in the public sphere (Danchin 2010, p. 1). This paper will offer some brief comments on the Constitutional Court of South Africas handling of the right to adequate water, particularly in the 2009 Mazibuko judgment, which appears to be at variance with the United Nations’ jurisprudence. Background The applicants of the case were five deprived dwellers of Phiri, in Soweto, one of the most deprived urban regions of Johannesburg, which developed as a black community in the apartheid days (Danchin 2010, p. 1). The respondents, on the other hand, were the Council of the City of Johannesburg, the Minister of Forestry and Water Affairs and Johannesburg Water, a water company fully owned by the City Council of Johannesburg. Standing as amicus curiae was the global NGO, COHRE, meaning the Centre on Housing Rights and Evictions. Part of the applicants’ legal group also was the Legal Studies Centre of the Witwatersrand University together with other human rights groups (Kidd 2011, p. 7). Finally, the matter arose at first out of the organising attempts of the Coalition Against Water Privatisation, an SA social association that worked together with COHRE and CALS such that the lawsuit effort was pursued together with social mobilisation so as to build a vital support base and advocacy for understanding of the right to enough water (Kidd 2011, p. 7). For a couple of years, water had been piped to Phiri, Soweto, through an unlimited and unmetered supply for which a fixed monthly fee of R68.40 (roughly US$9) was charged on the grounds of an “estimated” monthly use of 20 kilolitres of water per home. In real sense, nevertheless, monthly use of water per house in Phiri was 67 kilolitres (Danchin 2010, p. 1). Johannesburg Water calculated that neatly a third of all water it bought was channeled to Soweto, but that just a mere one percent of its proceeds were generated from that region. A reason for this was water losses caused from dripping pipes, but the major reason was that a number of residents of Soweto did not compensate the agreed use charges. This led to three quarters of all water channeled to Phiri being unaccounted for (Danchin 2010, p. 1). Lower Court Decisions The matter was heard initially, in December, 2007, in the Joburg High Court where judge Tsoka argued that (1) the policy of free basic water was unlawful and that the least amount should be risen to 50 litres per individual each day to obey section 27(1) of the SA Constitution: and (2) the prepay meters had absolutely no foundation in law and had been executed in a procedurally unjust way (Danchin 2010, p. 1). The City of Joburg filed an appeal to the Supreme Court wherein on March 25th, 2009, supported the ruling of the High Court, but on dissimilar grounds (IHRC n.d, p. 1). The Supreme Court ruled that (1) the policy of free basic water violated section 27(1), but on the grounds of professional proof, the least amount of water needed was 42 litres per individual each day; and (2) whereas setting up of prepay meters was illegitimate, the assertion of unlawfulness must be postponed for two years to grant the Joburg City time to make its water policy come to line with the sensibleness need of the South African Constitution (Danchin 2010, p. 1). However, the applicants applied for petition at the Constitutional Court wanting to restore the ruling of the High Court providing 50 litres per day per person and reserve the postponement of the assertion of invalidity (Danchin 2010, p. 1). Decision of the Constitutional Court Writing for an unknown Court, Justice O’Regan argued that the applicants’ two basis of appeal must be dismissed (DWA 2010, p. 70). In contrast to the rulings of both the Supreme Court, as well as the High Court, the Court ruled that (1) Joburg’s policy of free basic water of 25 litres per day per person was sensible below section 27(1) of the SA Constitution, and (2) the bringing in of prepay water meters was absolutely lawful, procedurally just and not unjustly biased (Danchin 2010, p. 1). Lawfulness of Pre-Paid Meters In response to the debate that the prepay meters were unjustly unfair as the people of Phiri were not offered a choice whether they wanted to receive water on credit, the Court acknowledged that not just were the people who got water on credit not offered a chance of prepay meters, but were also charged more, and; therefore, subsidised the provision of water to those on the prepay tariff (Danchin 2010, p. 1). In addition, the prepay meters were intended for the legitimate government aim of easing extensive water losses in Soweto and, in particular, Phiri, as well as their prologue and the differentiation the rule drew between classes of people was hence not illogical for the goals of section 9 of the SA Constitution (DWA 2010, p. 78). And finally, the fixing of pre-paid meters did not lead to unjust discrimination because they were set up for a lawful purpose and were plainly tailored to that principle (for instance, prepay meters had not been used in other ex-apartheid “deemed use” regions where the unaccounted for water issue was less sensitive) (Danchin 2010, p. 1). “Minimum Core” versus Reasonableness What is interesting about the Mazibuko case are the differences in reasoning and logic between the reasonableness approaches and the minimum core (Dabrowski 2009, p. 1075). The two lower courts, in reality borrowing from the UN jurisprudence of human rights, settled on a minimum core provisions of the right in section 27(1)(b) through measuring the volume of water considered sufficient for a dignified life (Dabrowski 2009, p. 1075). In putting 50 litres per day per person as the least to meet vital hygiene and usage needs, Judge Tsoka supported COHRE’s amicus brief and assumed the goals of section 27 of WHO Principles on “Domestic Water Quantity, Health and Service Level” and the professional view of Dr. Peter Gleick, leader of PISDES, in Oakland, California (Danchin 2010, p. 1). In situating the constitutional least rather at 42 litres per day per person, the Supreme Court opted to use the expert evidence of a civil engineer who runs a consultancy organisation with proficiency in the transformation and development of water supply and hygiene in South Africa (Dabrowski 2009, p. 1075). This loom of quantifying a least volume of water for the goals of the right stood in tension with the understood loom of the Constitutional Court that in both TAC and Grootboom had rebuffed the idea that social and economic rights maintained a minimum core, which South Africa is required to give, the provisions of which are to be decided by the courts. Instead, the Court had opted for an interpretation implementing a duty of progressive understanding by reasonable legislative, as well as other vital measures (CDE 2010, p. 98). Therefore, under the reasonableness loom, if the regime takes no steps to apprehend social and economic rights, the courts will need action.  If the regime’s assumed techniques are held to be irrational—particularly for those most greatly in need as in Grootboom—then the courts will assess those measures in order to meet the legitimate standard of fairness or reasonableness (CDE 2010, p. 98). And if the South African policy has irrational exclusions or limitations as in TAC, then the courts might order those eliminated (Danchin 2010, p. 1).  Finally, the requirement of progressive recognition implements a duty on the regime repeatedly to assess its policies. The concept of reasonableness is argued to focus rather on a sociologically-based and value-framed evaluation stressing the values of equality, human dignity and freedom—the principles signifying the SA Constitution itself (Danchin 2010, p. 1). In my perception, hidden in this loom must be some view of a minimum core forcing normative pressure to a standard through which the Court is capable of determining whether a specific government action or policy falls outside or below a constitutional right. However, the key to the idea’s durability and power is specifically its openness and flexibility, its inappropriateness to the practical tasks of specification and quantification (Barrett & Vinodh 2007, p. 60). Nevertheless, this might only trade uncertainty for indeterminacy—what Cockrell unkindly termed as “rainbow jurisprudence” (Danchin 2010, p. 1). Does it insult human dignity, freedom or equality, for instance, to charge some people more than others for supply of water, or to require poor people to sign up for a means-tested basis? How are the courts to make such resolutions in an objective manner? And as Michelman has witnessed, redistributive regulations that affect human dignity in SA are likely to vary significantly from what is regarded “reasonable” in the constitutional tradition of societies like the United States (Danchin 2010, p. 1). Concluding Remarks The impact of Mazibuko lies in three areas.  First, consistent with the previous social and economic rights decisions of the Court, the case offers the intriguing following chapter in the local implementation of global human rights traditions in South African law (Danchin 2010, p. 1). Second, even though the final result in the Mazibuko case has surely disappointed rights promoters, the case offers an fascinating case study of (a) how the ESC rights can be contested, claimed and increasingly realised if only ultimately as proofed by the City’s recurrent review and change of its water regulations in response to the recurrent public interest lawsuit; (b) how the regime itself and precise elements of public policy can be held responsible through a constitutional tradition of justification; and (c) how deliberative democracy and participatory is eventually widened by the constitutional contestation of social and economic rights (Barrett & Vinodh 2007, p. 64). Finally, one might question the level to which the Court’s restraint and caution in restricting its adjudicatory role and its interest in the City’s debate was persuaded by the political chaos arising from the Zuma and Hlophe sagas that have rocked the institutional legality of the Court and centered renewed concern on the “counter-majoritarian” character of the Court’s constitutional duty, particularly in the regions of fair distribution of resources and power (Danchin 2010, p. 1). References Algotsson, E 2009, Water supply and sanitation in South Africa: environmental rights and municipal accountability, LHR Publication, Johannesburg. Barrett, D & Vinodh, J 2007, The right to water, privatised water and access to justice: tackling United Kingdom water companies’ practices in developing countries, LHR Publication, Johannesburg. Centre for Development and Enterprise (CDE) 2010, Water: a looming crisis? Centre for Development and Enterprise, Johannesburg. Dabrowski, J 2009, Agricultural impacts on water quality and implications for virtual water trading decisions, Ecological Economics vol. 5, no. 68, pp. 1074-1085. Danchin, P 2010, A human right to water? The South African Constitutional Court’s decision in the Mazibuko case, viewed 24th January, 2014, at http://www.ejiltalk.org/a-human-right-to-water-the-south-african-constitutional-court%E2%80%99s-decision-in-the-mazibuko-case/ Department of Water Affairs (DWA) 2010, Integrated water resource planning for South Africa, DWA, Johannesburg. Icelandic Human Rights Centre (IHRC) n.d, The right to an adequate standard of living, viewed 24th January, 2014, at http://www.humanrights.is/the-human-rights-project/humanrightscasesandmaterials/humanrightsconceptsideasandfora/substantivehumanrights/therighttoanadequatestandardofliving/ Kidd, M 2011, Poisoning the right to water in South Africa: what can the law do? viewed 24th January, 2014, at http://cer.org.za/wp-content/uploads/2011/11/UNE-Paper-Kidd-Final-20110408.pdf Read More