By Catherine Sasman
The non-supply of water services to a household due to their inability to pay for such services is a violation of constitutional rights, as Government has a statutory obligation to supply water to its citizens, said Director of the Legal Assistance Centre (LAC), Norman Tjombe.
He said despite the fact that the Namibian Constitution does not have an explicit ‘right to water’, the Government has ratified international treaties, which include implicit and clear protection of the right to water.
“[The provision of] water is an obligation, not a charitable act,” maintained Tjombe.
He said the Convention on the Elimination of all Forms of Discrimination Against women (1979) and the Convention on the Rights of the Child (1989) both protect the right to water, and are part of the Namibian law, and hence enforceable in Namibian courts.
“The content of the right to water may be generally defined as a right to access to water of sufficient cleanliness and in sufficient quantities to meet individual needs. As a minimum, the quantity must suffice to meet basic human needs in terms of drinking, bathing, cleaning, cooking and sanitation,” said Tjombe.
He added that these needs directly correspond to the right to adequate housing, but added that the right to food is “more complex”.
“[Water] for food production would probably not be covered under the minimum needs in arid areas, as agricultural production requires such high amounts of water that individual household needs must first be ensured.”
He said the obligation is for more positive action to facilitate and provide access to adequate water to those that do not have it through the digging of wells, setting up and maintaining pipelines and cleaning up pollution, as well as more prudent spending of the national budget.
A legal challenge, however, is that access to water is considered a third generation right, and that there might be an incongruence between these rights and the development of any particular country.
John Nakuta of the Faculty of Law at the University of Namibia, however, stated that all human rights are interrelated, and hence that civil, political and economic rights should be on par with social and cultural rights.
Notwithstanding, most challenges to human rights violations in Africa tend to focus on civil and political rights, he said, “even though, in Africa, economic, social and cultural rights are daily concerns of most people”.
He said Namibia is no exception, where Government spends a considerable part of its budget on services like education and health, while the majority of the population does not have access to economic and other social services.
“[Government’s] social safety measures hitherto did not succeed in reversing the widening gap between rich and poor in Namibia,” contended Nakuta.
“Other ways need to be found to complement these efforts. It is my considered view that the law can and should be used to alleviate poverty in this country,” he said.
Economic, social and cultural rights are defined in the constitution as principles of State policy’, but these rights are considered as “not true rights” but rather relate to goals, policies and programmes, said Nakuta.
“[Fundamental] needs should not be at the mercy of governmental policies and programmes, but should be defined as entitlements,” he argued.
The South African constitution provides for clear and direct protection of economic, social and cultural rights in its Bill of Rights, allowing individuals and groups whose rights have been violated to seek redress from the courts.
Nakuta was of the opinion that these rights can directly and indirectly be enforced under the Constitution through an expansive interpretation of certain civil and political rights such as the right to life, human dignity, equality or security.