BY SAM ALFAN.
Several associations have moved to court to block the implementation of new water charges arguing that there was no public participation.
The petition says the Water Use Charges set out in Part B of the Second Schedule of the Water Resources Regulations, 2021 are so exorbitant and unaffordable.
The charges have been increased by between 200% and 500%, an amount that is a violation of the rights of Kenyans to clean and safe water in adequate quantities protected by Article 43(1)(d) of the Constitution.
Kenya Water and Sanitation Civil Society Network, Mount Kenya Ewaso Water Partnership, Likii Water Resources Users Association and Likiundu Water Resources Users Association filed the case under certificate of urgency.
The associations want the High Court to stop the charges which were introduced through the Water Resources Regulations, 2021.
Others who have challenged the increase of water charges are Joseph Mwingirwe, Franco Mwiti, Samwel Maina, Justine Njeru and David Nabea.
“Unless the orders sought are granted, unwarranted suffering and disruption of irrigation and other socio-economic activities will occur and the quality of lives of millions of Kenyans is at stake,” the petitioners allege.
It is their argument that the increment of water user charges constitutes an unreasonable derogation of the rights to life, human dignity and realization of socio-economic rights.
The associations claim that the decision was sanctioned by the World Bank on a policy of commercialization of water and sanitation services during the era of climate change and frequency of prolonged drought and famines.
They argue that any retreat by the State from bearing the main burden of providing water and sanitation services will make life unbearable by increasing water-borne diseases, worsen hunger, malnutrition and sanitation services among millions of vulnerable citizens that have no access to safe and clean water in adequate quantities in Kenya.
Through lawyer Kibe Mugai the individuals and associations argue that the Regulations are so unconstitutional and unreasonable and which should be suspended pending the determination of the case.
The petition says the Water Services Regulations, 2021 and the Water Resources Regulations, 2021 were promulgated in contravention of Section 11(1) of the Statutory Instruments Act, 2013 read with Articles 94, 95 and 96 of the Constitution.
“In view of the constitutional obligation of the Kenyan State and its agencies set out in Article 21(1) & (2) of the Constitution to take legislative, policy and other measures to achieve the progressive realization of rights guaranteed under Article 43 of the Constitution, the prescription/imposition of the Water Use Charges contained in Part B of the Second Schedule of the Water Resources Regulations constitutes a violation of the said Articles 22 and 43 of the Constitution by the Respondents,” they argue.
They add that Water Use Charges contained in Part B of the Second Schedule of the Water Resources Regulations are based on a free market agenda espoused and promoted by the World Bank yet the Constitution envisages that the Kenyan State would implement policies in the water sector that protects, promotes and fulfill the right of the greatest member of people to clean and sale water in adequate quantities.
Notwithstanding the fact that provision of water and sanitation are devolved functions the Water Act, 2016 and the Regulations allocate a nominal role and participation to the County Governments which effectively strips the associations and the general public of institutional safeguards in the regulation, provision and management of water resources.
According to the petitioners, given the importance and necessity of water in sustenance of life and sanitation this Honourable Court should abhor the policy choice of Water CS, Attorney General,Water Resources Authority, Water Services Regulatory Board and Parliament to commercialize the provision and protection of water resources instead of making sufficient budgetary allocation from the Consolidated Fund to finance development of water resources, distribution and access to water and sanitation by the greatest number of people.
The Petition challenges the legality of the water user charges prescribed under the Second Schedule of the Water Resources Regulations, 2021 which started to be implemented on 1″ March, 2023 and the Water Resources Regulations have, inter-alia, increased the water user charges at between 500% and 1000% in spite of water being a necessity to sustain animal and plant life besides enabling human dignity that good sanitation entails.
They argue that despite the fact that under Section 4 of the Water Act, 2016 provides that Article 10 of the Constitution on National Values and Principles of Governance shall guide the administration and application of the Water Act, the Cabinet Secretary for Water and Sanitation failed to subject the Water Services Regulations, 2021 to public participation before the same were gazetted.
They argue that upon the gazettement of the Regulations aforementioned the Council of Governors protested to the Clerk of the National Assembly about the exclusion of County Governments in the making of these Rules despite the fact that water and sanitation services are devolved functions under the Fourth Schedule of the Constitution.
Mungai says the Chairman of the Council of Governors wrote a letter to governors on 30th August, 2021 urging them to instruct the respective water services providers to refrain from implementing the new water charges.
The move was frozen “until an intergovernmental meeting is held between the Council of Governors and the Ministry of Water, Sanitation and Irrigation to discuss all the contested provisions of the regulations”.
However, the Regulations have come into force before the contentious issues have been resolved.
