Masters Thesis: The Nexus between Human Rights and Sustainable Development: WASH in Kenya by Jong Hee Paik

MASTER THESIS

THE NEXUS BETWEEN HUMAN RIGHTS AND SUSTAINABLE DEVELOPMENT: A Story of Water and Sanitation in Kenya 2019/2021 Academic Year

Student: Jong Hee PAIK Master of International Cooperation in Sustainable Emergency Architecture Supervisor: Hug MARCH CORBELLA Date presented: 02/07/2021

ABSTRACT

The focus of this research is to investigate the nexus of the Human Rights to Water and Sanitation and the United Nations Sustainable Development Goal 6 to identify gaps and interrelations between the implementations of human rights-based approach and the sustainable development approach in the context of sub-Saharan Africa. Such a study is important in understanding alternative ways to universal provision of access to safe water and adequate sanitation in the hopes of improving the quality of life for all. The research approach adopted in this paper includes a case study of Kenya, through a thorough review of policies and government reports, UN reports, SDG reports and WASH data available through the Joint Monitoring Programme by WHO/UNICEF. The findings show that when adapted properly, the human rights-based and sustainable development approaches in WASH provision could create synergy; however, it showed a big gap amongst the indicators in evaluating the performance of the WASH provision. Finally, it was concluded that other factors, such as historical context, urbanisation, lack of policies and frameworks, and weak institutions have a big impact on the provision, hence context-specific studies are recommended in addition to the human rights-based and sustainable development approaches.

Keywords: Human Rights to Water and Sanitation, Sustainable Development Goal 6, water and sanitation for all, leaving no one behind, Kenya.

Acknowledgements

I would like to express my sincere gratitude to my supervisor Hug March for providing me with guidance throughout the research, shedding light on the topic of political ecology, for the feedback that helped me shape this research, and his patience throughout the journey. I would like to acknowledge the Mundus Urbano programme coordinators, Anshika Suri and Nebojša Camprag, for all the support and critical feedback they have given me from the previous year in Darmstadt; this has really helped me to grow as a researcher, to where I am standing now, as well as MICSEA coordinator Allison Koornneef for her support and assistance whenever I was in need. I would also like to thank Dr. Annette Rudolph-Cleff, Carmen Mendoza, and each and every professor from all over the world, who have taught me in Darmstadt, in Barcelona and remotely. All the knowledge and skills I have gained throughout the Mundus Urbano programme have really shaped who I am now. Special thanks to all my friends whom I met through this programme, you know who you are. Without you guys, the journey wouldn’t have been as fun and insightful. You guys are so special, and thanks for your love and support. And finally, without the financial support and love from my family, I wouldn’t have been able to achieve all this. I am eternally grateful for all the sacrifices you have made to raise me and always show limitless support. I miss you and love you so much!

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List of Figures

Figure 1 UN-Water Integrated Monitoring Initiatives for SDG 6 ................................... 11 Figure 2 The linkages between water and other sectors presented in Kenya Vision 2030..................................................................................................................... 20 Figure 3 Goals and Strategies for the water sector in Kenya for 2012 ......................... 21 Figure 4 Trend in Water and Sewerage Coverage in Kenya 2009-2019 ...................... 22 Figure 5 Sustainable Development Goals Performance Index Scores for Kenya, 20002021..................................................................................................................... 25 Figure 6 Average Performance by SDGs in Kenya...................................................... 26 Figure 7 Details of the SDG 6 performance for Kenya ................................................. 26 Figure 8 Targets and Indicators for the 2030 Vision for Household WASH .................. 27 Figure 9 Kenya’s Overall Household WASH Data 2017 .............................................. 28 Figure 10 Kenya's Household WASH Data Based on Urban/Rural Area 2017 ............ 28 Figure 11 Kenya's Household Water Provision Trend, 2000-2017 ............................... 29 Figure 12 Kenya's Household Water Provision Trends - Urban (left) and Rural (right), 2000-2017............................................................................................................ 29 Figure 13 Kenya's Household Water Provision Trend Based on Facility Type, 20002017..................................................................................................................... 30 Figure 14 Kenya's Household Water Provision Trend Based on Facility Type – Urban (left) and Rural (right), 2000-2017 ........................................................................ 30 Figure 15 Kenya's Household Sanitation Provision Trend, 2000-2017 ........................ 31 Figure 16 Kenya's Household Sanitation Provision Trend - Urban (left) and Rural (right), 2000-2017............................................................................................................ 31 Figure 17 Kenya's Household Sanitation Provision Trend Based on Facility Type, 20002017..................................................................................................................... 31 Figure 18 Kenya's Household Sanitation Provision Trend Based on Facility Type Urban (left) and Rural (right), 2000-2017.............................................................. 32 Figure 19 Household Hygiene (handwashing) Data - Sub-Saharan Africa, 2017 ......... 32 Figure 20 Proportion of Population Using Mobile/Fixed Handwashing Facilities at Home, 2015-2017 ................................................................................................ 33 Figure 21 Graph illustrating inequalities in Basic Drinking Water Provision in Urban/Rural Areas ............................................................................................... 34

List of Tables

Table 1 Research Aim and Objectives .......................................................................... 4 Table 2 Millennium Goal 7 targets c and d .................................................................... 8 Table 3 Sustainable Development Goal (SDG) 6 Targets, Indicators and Custodian Agencies ............................................................................................................. 10 Table 4 Kenya’s WASH Data on Indicators 6.1.1 and 6.1.2 Reported in the VNR 2020 ............................................................................................................................ 35 Table 5 Kenya’s WASH Data on Indicator 6.b.1 Reported in the VNR 2020................ 35

List of Abbreviations

AAAQ

Availability, Accessibility, Acceptability and Quality/Safety

AAAAQ

Availability, Accessibility, Affordability, Acceptability and Quality/Safety

ALDEV

African Land Development Board

CESR

Centre for Economic and Social Rights

DIHR

Danish Institute for Human Rights

FAO

Food and Agriculture Organization of the United Nations

GEMI

Global Environmental Management Initiative

GLAAS

Global Analysis and Assessment of Sanitation and Drinking-Water

HRC

Human Rights Council

HRBAD

Human Rights Based Approach to Data

HRWS

Human Rights to Water and Sanitation

IBEACO

Imperial British East Africa Company

IWRM

Integrated Water Resource Management

JMP

Joint Monitoring Programme

KESHP

Kenya Environmental Sanitation and Hygiene Policy

KESSF

Kenya Environmental Sanitation and Hygiene Strategic Framework

KNBS

Kenya National Bureau of Statistics

KNCHR

Kenya National Commission on Human Rights

MDG

Millennium Development Goal

MoI

Mode of Implementation

NGO

Non-Governmental Organisation

NJRI

National Human Rights Institution

NWSS

National Water Services Strategy

NWRM

National Water Resources Management Strategy

OHCHR

Office of the UN High Commissioner for Human Rights

OPERA

Outcomes, Policy Efforts, Resources and Assessment

SDG

Sustainable Development Goal

SDGR

Sustainable Development Goals Report

SDSN

Sustainable Development Solutions Network

SIDA

Swedish International Development Co-operation Agency

UDHR

Universal Declaration of Human Rights

United Nations

UNEP

United Nations Environment Programme

UNGA

United Nations General Assembly

UNICEF

United Nations Children’s Fund

UNO-IDfA

United Nations Office of the International Decade for Action

UNW-DPAC

UN-Water Decade Programme on Advocacy and Communication

UNW-DPC

UN-Water Decade Programme on Capacity Development

VNR

Voluntary National Review

WASH

Water, Sanitation and Hygiene

WSP

Water Service Provider

WASREB

Water Services Regulatory Board

WEF

World Economic Forum

WHO

World Health Organization

WSRB

Water Services Regulatory Board

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Table of Contents ABSTRACT........................................................................................................ II ACKNOWLEDGEMENTS ................................................................................. III LIST OF FIGURES............................................................................................ IV LIST OF TABLES .............................................................................................. V LIST OF ABBREVIATIONS .............................................................................. VI CHAPTER 1: INTRODUCTION ......................................................................... 1 1.1 1.1.1 1.1.2 1.2

Research Background .................................................................................................... 1 The Water and Sanitation Crisis ..................................................................................... 1 The Importance of Water, Sanitation and Hygiene (WASH) ........................................... 3 Research Aim and Objectives ......................................................................................... 3

CHAPTER 2: THEORETICAL BACKGROUND ................................................ 5 2.1 2.2 2.3

Human Rights to Water and Sanitation (HRWS) ............................................................ 5 The United Nations Sustainable Development Goal 6 – ‘The Water Goal’ .................... 8 The Nexus Between Human Rights and Sustainable Development ............................ 12

CHAPTER 3: METHODOLOGY ...................................................................... 15 3.1 3.2

Research Methodology ................................................................................................. 15 Case Study Context – Kenya ........................................................................................ 15

CHAPTER 4: RESULTS ANALYSIS AND DISCUSSION ................................ 18 4.1 4.1.1 4.1.2 4.1.3 4.2 4.2.1 4.2.2 4.2.3

Rights to Water and Sanitation in Kenya ...................................................................... 18 Water and Sanitation Policies and Legislations in Kenya ............................................. 18 The Kenya Vision 2030 ................................................................................................. 19 The UN Special Rapporteur’s Visit to Kenya ................................................................ 22 Sustainable Development Goals (SDGs) Performance in Kenya................................. 24 Sustainable Development Report 2021 ........................................................................ 25 Joint Monitoring Programme (JMP) Data by UNICEF and WHO ................................. 26 The Voluntary National Review (VNR) 2020................................................................. 34

CHAPTER 5: CONCLUSION ........................................................................... 36 5.1 5.2 5.3 5.4

Conclusion .................................................................................................................... 36 Value of This Research ................................................................................................. 36 Limitations ..................................................................................................................... 37 Recommendations ........................................................................................................ 37

CHAPTER 6: BIBLIOGRAPHY ....................................................................... 38 APPENDICES .................................................................................................. 42

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CHAPTER 1: INTRODUCTION 1.1 Research Background This chapter provides background information on the water and sanitation crisis, on global level and specifically to the Africa continent, including the rationale to focus the study on sub-Saharan Africa. Moreover, the importance of the provision of water and sanitation is explained and its impact on other aspects of life. Subsequently, the overall research aim and specific objectives are identified. This research was conducted with a focus on sub-Saharan Africa, more particularly with a case study on Kenya in Eastern Africa. Further explanation will be given in the later sections of the paper, but the some of the main reasons Kenya was chosen as a case study is because it is an English speaking country, where official documents are available in English to conduct this research, and the amount of secondary sources that are available on Kenya, which in consideration of the current situation of pandemic, this allows the author to conduct a desk research without having to travel. 1.1.1 The Water and Sanitation Crisis Despite all the technological advancement in the provision of modern day water infrastructure, it is estimated that 1.42 billion people today – including 450 million children – live in areas of high or extremely high water vulnerability (UNICEF, 2021), and 785 million people – 1 in 9 – even lack access to safe basic drinking water (WHO, 2019). The Global Risks Report 2020 by the World Economic Forum (WEF) states that the water crisis is the #5 global risk in terms of impact to society. The situation with sanitation is worse; it is estimated that 2 billion people lack access to basic sanitation, and 673 million people practice open defecation (WHO, 2019). Moreover, with 3 billion people globally without access to soap and water to wash their hands at home, this is critical especially in the times of pandemic as we are in now (UNICEF, 2020). This crisis affects the countries in the Global South significantly more, and especially the low-income members of the society, who often live in informal settlements. According to a recent report by the World Resources Institute on 15 cities in the Global South, it states that 42% of households in these cities lacked access to inhouse piped water, and the number of residents in the urban areas that lack access to piped water has increased by over 200 million since 1990 (McDonnell, 2019). In urban slum areas, those who do not have access to in-house piped water often get water from informal providers; however, the cost of the water can be much higher than the centrally connected water, which makes it unaffordable for many. In the case of Mumbai, for instance, the cost of the water from a tanker truck is 52 times more expensive than the water from the public pipe (McDonnell, 2019). Cornell University 1

(2019) also referred to the report by the World Resources Institute and stated that 62% of sewage and faecal sludge is unsafely managed in the above mentioned 15 cities. It further reported that according to WHO, the number of people who lack well-managed sanitation in cities has increased more than 20% since the 2000, from 1.9 billion to 2.5 billion around the world, and that it is expected to reach 6 billion by 2030. The water and sanitation crisis is even more evident in Africa, where the availability of freshwater sources are significantly lower than other parts of the world. According to the Food and Agriculture Organization of the United Nations (FAO) (2005), the continent of Africa consists of about 3,930 km3 of renewable water resources as a whole, which accounts for less than 9 percent of global renewable water resources. When compared to other parts of the globe, America has around 45 percent of the world’s total renewable water resources, being the largest share; Asia with 28 percent; and Europe with 15.5 percent (Mugagga & Nabaasa, 2016). According to the United Nations Environment Programme (UNEP) (2010), Africa is the second driest continent after Australia, but it has the world’s most population after Asia. The urbanising cities of sub-Saharan Africa struggle even more with the provision of water and sanitation to its people. According to Dos Santos et al. (2017), the main challenges related to water in sub-Saharan Africa includes providing water to rapidly growing urban population and the maintenance of existing urban water infrastructure. Adams and colleagues (Adams et al., 2019) claim that the history of water supply policies in sub-Saharan Africa has often moved in tandem with global water initiatives. In the global setting, when water was being considered as an economic good, which involved market-based principles for profit and cost recovery, this created a paradigm shift in the water sector.1 According to Bakker (2010) (as cited in Adams et al., 2019), this brought focus on economic profit over the people’s basic right to water. Jaglin (2002) also confirms this argument, that in the first series of water policy reforms in sub-Saharan African countries, more commercial policies were made to build markets more efficient and to increase productivity, and the rights of the users were not really taken into account. However, this does not affect the people who can afford to pay for water services, but it created challenged for people in low-income households to access water. The privatisation of water supply has also exacerbated the inequality in water provision, because the water companies would choose to provide piped water to

For instance, before the Dublin conference in 1992, water was seen as a public good (Dos Santos et al., 2017), but then the principle by UN (1992) that ‘water has an economic value in all its competing uses and should be recognized as an economic good’ triggered the privatization of water utilities in sub-Saharan Africa, especially in urban areas (as cited in Adams et al., 2019).

wealthier neighbourhoods, where cost-recovery is possible (Adams et al., 2019). According to the study by Armah and colleagues (2018), rich households in subSaharan African cities are 329 percent more likely to have access to better sources of freshwater, and 227 percent more likely to have access to better sanitation facilities compared with the urban poor. Their study also showed that without the governments and relevant stakeholders deliberately adopting strategies to improve the water and sanitation provision in deprived areas, the universal goal to provide water and sanitation for all will unlikely be achieved. 1.1.2

The Importance of Water, Sanitation and Hygiene (WASH)

The inequality in the provision of water and sanitation amongst the rich and the poor, and the formal and informal areas, not only makes it difficult for the people in lowincome areas or informal settlements to access water, but this also does not guarantee the quality due to lack of control of the informal water service providers. This further could generate potential health risks and environmental problems for the people, and could also affect their economic capabilities and education opportunities. Moreover, in many cities in the Global South, the daily task of collecting water to provide for the family is primarily given to women and children. According to UNICEF (2016), women and girls around the globe are spending 200 million hours every day collecting water; and in the case of sub-Saharan Africa, a roundtrip to collect water is 33 minutes on average in rural areas and 25 minutes in urban areas. This implies that the opportunity cost is very high for the women and children who have to collection water on daily basis; this is time that could be spent on education, economic activities, leisure, etc. In other words, the global water and sanitation crisis is not just the problem of water, sanitation and hygiene (WASH); it is also a health crisis, education crisis, inequality crisis, environmental crisis, economic crisis, development crisis, and humanitarian crisis, especially for the women and children, as well as the marginalised groups. 1.2 Research Aim and Objectives This unfortunate and tragic state of inequality2 of water, sanitation and hygiene (WASH) provision around the world has driven me to conduct this research on water and sanitation. The overall aim of this research is to study the interrelations (or ‘the nexus’) of the Human Rights to Water and Sanitation (HRWS) and the United Nations Sustainable Development Goal 6 – ‘the water goal’ – to identify any gaps between the

Inequality between the Global North and Global South; between the developed and developing countries; and between the rich and the poor (also between the colonisers and colonised).

implementations of human rights-based approach and the sustainable development approach in the context of sub-Saharan Africa. In order to achieve this research aim, a case study of Kenya was conducted with specific objectives as shown in Table 1.

Table 1 Research Aim and Objectives Research Aim: To study the interrelations (or ‘the nexus’) of the Human Rights to Water and Sanitation (HRWS) and the United Nations Sustainable Development Goal 6 – ‘the water goal’ – to identify any gaps between the implementations of human rights-based approach and the sustainable development approach in the context of sub-Saharan Africa.

Specific Objectives:

•

To investigate how/whether the Human Rights to Water and Sanitation are adopted within the current policies and legislation in Kenya.

•

To evaluate the Sustainable Development Goal 6 performance in Kenya.

•

To cross-analyse the human rights-based approach and the sustainable development approach to water and sanitation provision in Kenya.

•

To identify other factors affecting the water and sanitation provision in Kenya.

CHAPTER 2: THEORETICAL BACKGROUND This chapter provides the background of the current debates on the topic of human rights and sustainable development, and their relevance with water and sanitation. First, a brief history of modern human rights movement and Human Rights to Water and Sanitation are presented, followed by a brief history of international frameworks on development and the UN Sustainable Development Goal 6 – ‘the water goal.’ Subsequently, through literature review, the interlinkages between the human rights and sustainable development are explained and discussed. Gaps and contradictions in the literature are identified, and emerging research questions to fill those gaps.

2.1 Human Rights to Water and Sanitation (HRWS) It is undebatable that water is essential for human life, and sanitation is inseparable from our daily lives. When the Universal Declaration of Human Rights (UDHR) was first established by the United Nations General Assembly (UNGA) in 1948 (Resolution 217 A), the topic of water and sanitation was not mentioned explicitly. The rights to water and sanitation could be linked to Article 3 of UDHR on ‘the right to life, liberty and the security of person’ or Article 25 on ‘the right to a standard of living adequate of health and well-being;’ however, it was not until 1977 United Nations Water Conference in Mar del Plata, Argentina, that the concept of basic water requirements to meet fundamental human needs was first established.3 Since the conference in Mar del Plata, the issue of ‘Right to Water’ had been brought up by various conventions and conferences.4 Followed by the conference was The First Water Decade, an International Drinking Water Decade 1981-1990, a ten-year period which aimed to focus on the provision of safe water and sanitation for everyone by 1990,5 and in 1992, UN General Assembly (UNGA) designated 22 March as World Water Day to promote the awareness of the importance of fresh water.6 It was only after the new millennium that the rights to water and sanitation have been recognised in the international law in November 2002 as a part of the right to an

Please refer to the Report of the United Nations Water Conference for more information, which is available at: https://www.ircwash.org/sites/default/files/71UN77-161.6.pdf 4

See 1979 Convention on the Elimination of All Forms of Discrimination Against Women, 1989 Convention on the Rights of the Child, 1992 Dublin Conference and Rio Summit, 1994 UN Conference on Population and Development, and 1996 UN Conference on Human Settlements – Habitat II. 5

More information is available at: https://www.gdrc.org/uem/water/decade_05-15/first-decade.html

The website of the World Water Day with more information is available at: https://www.worldwaterday.org/

adequate standard of living.7 In 2003, the UN General Assembly (UNGA) announced The Second Water Decade – the International Decade for Action ‘Water for Life’ 20052015 – to promote international commitment dealing with water-related issues, adapting Integrated Water Resource Management (IWRM) and improving water efficiency.8 The same year, UN-Water was established to coordinate with international organisations to work on the issues of water and sanitation. The UN-Water was the agency in charge of the International Decade for Action ‘Water for Life’ 2005-2015, and initiated programmes like UN-Water Decade Programme on Advocacy and Communication (UNW-DPAC) to familiarise the people with the issues related to human right to water and the UN-Water Decade Programme on Capacity Development (UNW-DPC) to strengthen the effectiveness of capacity development activities regarding the issues on water. The United Nations Office to support the International Decade for Action 'Water for Life' 2005-2015 (UNO-IDfA) was also established to further facilitate information and raise awareness of the framework.9 In 2005, the rights to water and sanitation were finally being discussed in the Draft Guidelines for the Realization of the Right to Drinking Water and Sanitation, followed by the request to the Office of the UN High Commissioner for Human Rights (OHCHR) to consider human rights to water and sanitation in 2006.10 In 2008 and 2009, the Human Rights Council (HRC) passed two resolutions11 where as a result an independent expert, known as a special rapporteur, was assigned to investigate the issues of water and sanitation around the world. Following the special rapporteur’s first report, HRC recognized that States have an obligation to address and eliminate discrimination with regard to access to sanitation for the first time. Consequently, in 2010, the human right to water and sanitation was officially recognised for the first time in the UN General Assembly, acknowledging “the importance of equitable access to safe and clean drinking water and sanitation as an integral component of the realization of all human rights.”12

See Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights.

More information is available at: https://www.un.org/waterforlifedecade/

More information on UN-Water, International Decade for Action ‘Water for Life’ 2005-2015, UN-Water Decade Programme on Advocacy and Communication (UNW-DPAC) , UN-Water Decade Programme on Capacity Development (UNW-DPC), and the United Nations Office for International Decade for Action 'Water for Life' 2005-2015 (UNO-IDfA) can be found on the website of UN-Water at: https://www.unwater.org/ 9

See Human Rights Council Decision 2/104.

Human Rights Council Resolutions 7/22 and 12/8.

See Human Rights Council Resolution 64/292 and 15/9.

Since the human rights to water and sanitation were officially recognised in 2010, many international agencies, civil societies and governmental organisations have been acknowledging and promoting the rights to water and sanitation. However, according to Fantini (2020), there are a number of debates contesting such notion: from legal and political perspectives to ethical, philosophical, ecological, and epistemological considerations on the issue. Fantini (2020) also claims that there are discrepancies in the definition of such right with different wordings that emphasise different dimensions of the same issue. In striving for advocacy of the human rights, the Office of the UN High Commissioner for Human Rights (OHCHR) has published a number of documents to guide practitioners, civil societies, governments and more, on how to approach measuring and implementing the rights. In Human Rights Indicators: A Guide to Measurement and Implementation13, published in 2012, it explains what human rights are, the UN’s human rights mechanisms, as well as qualitative and quantitative indicators to measure the implementation of human rights. A table that illustrates the indicators for Human Rights to Water and Sanitation is added in Appendix 1. Moreover, in 2014, OHCHR has published a handbook on Rights to Water and Sanitation Realising the Human Rights to Water and Sanitation: A Handbook by the UN Special Rapporteur Catarina de Albuquerque14. Intended mainly for State actors and other stakeholders in the water and sanitation sector, this handbook explains the Human Rights to Water and Sanitation and provides advice on how to incorporate HRWS in the legal frameworks. Another document recently published in 2020, A Human Rights Based Approach to Data (HRBAD) – Leaving No One Behind in the 2030 Agenda for Sustainable Development,15 under the headings – Participation, Data Disaggregation, Self-Identification, Transparency, Privacy and Accountability – aims to provide guidance and a common understanding of a human rights based approach with a focus on the issue of data collection and disaggregation. In addition to these documents, there are other indicators to measure the human rights such as the AAAAQ (Availability, Accessibility, Affordability, Acceptability and Quality/Safety) / AAAQ (Availability,

The guidebook is available at: https://www.ohchr.org/Documents/Publications/Human_rights_indicators_en.pdf 14

The full handbook is available at: https://www.pseau.org/outils/ouvrages/ohchr_realizing_the_human_rights_to_water_and_sanitation_a_ha ndbook_2014.pdf 15

The guidebook is available at: https://www.ohchr.org/Documents/Issues/HRIndicators/GuidanceNoteonApproachtoData.pdf

Accessibility, Acceptability and Quality/Safety) Efforts, Resources and Assessment)

and OPERA (Outcomes, Policy

frameworks.

2.2 The United Nations Sustainable Development Goal 6 – ‘The Water Goal’ The modern concept of sustainable development emerged in the 1980s as the need for environmental protection was recognised in the practices of development planning around the world (Cobbinah et al., 2015) Widely used definition of sustainable development is by Brundtland Commission, which defines it as development that “[meets] the needs of the present without compromising the ability of future generations to meet their own needs” (Satterthwaite, 1997). With the global warming and the climate change, various problems appearing in this urbanising world, sustainable development was perceived as a paradigm shift and a new notion of development (Du Pisani, 2006). In 2002, the United Nations (n.d.) started the Millennium Campaign to support and inspire people around the world to take actions for the newly launched Millennium Development Goals (MDGs). The Millennium Development Goals (MDGs),18 composed of eight goals on topics such as poverty, environment, health, gender equality and global partnerships, targeting 2015 as a deadline, were developed as a blueprint agreed by UN member states and development institutions with the aim to work together with governments, civil societies and others, in the hope to alleviate extreme poverty. The MDG 7 on Ensure Environmental Sustainability contains targets relevant to water and sanitation and improving the living conditions for slum dwellers (targets 7.c and 7.d), as shown in Table 2. Table 2 Millennium Goal 7 targets c and d Target

Description

Target 7.c

To halve the proportion of the universal population without sustainable access to clean and safe drinking water and basic sanitation by 2015.

The Danish Institute for Human Rights (DIHR) has contextualised the AAAQ indicators for the Human Rights to Water and Sanitation. The manual was published in 2014, available at: https://www.humanrights.dk/publications/aaaq-framework-right-water-international-indicators 17

The OPERA Framework was initiated by the Centre for Economic and Social Rights (CESR) in 2012, with the aim to fulfil economic, social and cultural rights. Available at: https://www.cesr.org/sites/default/files/the.opera_.framework.pdf 18

More information can be found here: https://www.un.org/millenniumgoals/

Target 7.d

To achieve substantial improvement in the lives of a minimum of 100 million slum dwellers by 2020.

Source: https://www.un.org/millenniumgoals/environ.shtml

Although the eight MDGs in general sound like ambitious life-changing goals for the poor and the world, there have been numerous criticisms regarding its targets and indicators, and the measurements of their claimed achievements. One of them is (Satterthwaite, 2016) who has criticised the criteria for defining ‘improved provision’ for water and sanitation in urban and rural areas, as well as the statistical base for measuring and monitoring the progress on the MDG target for water and sanitation are inadequate, due to their very different conditions between the rural and the urban, which then leads to an understatement of such problems in urban areas. What works in rural areas might not necessarily work in urban areas because of the different contexts, and this was shown in a review of the statistics for water piped on premises and improved sanitation on changes to coverage from 1990 to 2015 that targets were not being met for urban populations in many nations (Satterthwaite, 2016). Moreover, the lack of regular reporting of the households living in slums and the lack of data gathering systems in low- and middle-income nations decreases the credibility of the reported collected data. According to the reports by the UN, there had been billions of people who gained access to ‘improved’ water and sanitation between the period of 1990 and 2015, and the MDG targets were reached 5 years before the deadline; however, (Weststrate et al., 2019) have criticised that the figures UN provided related to water and sanitation may have been too optimistic and further questioned whether the progress towards MDG target 7.c had been sustainable and equitable. In the MDG period, governments around the world, especially of the low- and middle-income nations, seemed to have failed to invest effectively in the provision of water and sanitation infrastructure, to expand piped network and to protect the public against health risks and pollution of the environment (Weststrate et al., 2019). Additionally, there also seem to lack consistent data that clearly explains to what extent governments have failed or succeeded, as well as the limitations of the household surveys with interviewers that potentially lack of technical qualifications to judge the current or ‘improved’ water and sanitation infrastructure (Satterthwaite, 2016; Weststrate et al., 2019). Following the MDGs are the current seventeen Sustainable Development Goals (SDGs)19, as part of the UN’s 2030 Agenda for Sustainable Development 19

More information can be found here: https://sdgs.un.org/goals

(A/RES/71/313). As an improved version of the MDGs, some of the shortcomings of MDGs have been addressed by the indicators in the SDGs (Guppy et al., 2019). The succeeding SDGs make a strong commitment to universal provision for many basic services with a focus on peace and prosperity, and with an additional emphasis on the climate change and the environment (UN, n.d.). One of the significant differences from the previous MDGs is that there is an independent goal for water and sanitation in the SDGs. The SDG 6: Clean water and sanitation for all, also known as ‘the water goal,’ compose of eight targets and eleven indicators aim “to ensure availability and sustainable management of water and sanitation for all by 2030” (UN, n.d.). The detailed targets and indicators, as well as custodian agencies, for the SDG 6 are presented in Table 3. Table 3 Sustainable Development Goal (SDG) 6 Targets, Indicators and Custodian Agencies

Source: Ortigara et al. (2018) Edited by the author.

The six ‘outcome’ targets (targets 6.1 to 6.6) and two ‘means of implementation (MoI)’ targets (targets 6.a and 6.b) of the SDG 6 are monitored by UN-Water through

Integrated Monitoring Initiatives20, in cooperation with the custodian agencies shown in Table 3. As illustrated in Figure 1, targets 6.1 and 6.2 on drinking water, sanitation and hygiene (WASH) are monitored through the Joint Monitoring Programme (JMP) by WHO and UNICEF; targets 6.3 to 6.6 on water, wastewater and ecosystem resources are monitored by GEMI; and targets 6.a and 6.b on promoting cooperation and participation are monitored through Global Analysis and Assessment of Sanitation and Drinking-Water (GLAAS) by UN-Water. Figure 1 UN-Water Integrated Monitoring Initiatives for SDG 6

Source: UN-Water (2017). Integrated Monitoring Guide for Sustainable Development Goal 6 on Water and Sanitation: Targets and global indicators. Edited by the author.

In the UN-Water’s document on Integrated Monitoring Guide for Sustainable Development Goal 6 on Water and Sanitation: Targets and global indicators (2017), it states that targets 6.1 and 6.2 respond directly to the Human Rights to Water Sanitation (p. 7). Tables with more detailed information on the normative interpretations of targets 6.1 and 6.2, and the definition, disaggregation, rationale, use, and complementary indicators on the global indicator 6.1.1 and 6.1.2, as well as a graph that illustrates how the indicator 6.1.1 on SDG 6 is built on the existing MDG indicator for improved drinking water source in Appendix 2.

More information is available at: https://www.unwater.org/what-we-do/monitor-and-report/

In addition, there are overall Sustainable Development Goals reports published by the UN, which provides the overall performance of all seventeen goals. According to the Sustainable Development Goals Report 2020 on SDG 6, the proportion of the global population using safely managed drinking water services increased from 61 per cent in 2000 to 71 per cent in 2017. Nevertheless, 2.2 billion people around the world still lacked safely managed drinking water, including 785 million without basic drinking water (SDGR, 2020). Despite all the efforts by the UN and other agencies, many scholars still criticise that there are gaps in SDG 6 and its indicators. For instance, Guppy and colleagues (2019) criticise that there are two potential gaps in the SDG 6 and its indicators: poorly understood linkages between core targets and their indicators, as well as between MoI indicators and the desired outcomes. Guppy and colleagues (2019) claim that achieving the indicators will not necessarily lead to the achievement of the aspirations enunciated in the target and that the MoI targets, which are based on the SDG 17 emphasising on global partnerships, do not clearly illustrate how the indicators of the SDG 17 and the targets 6.a and 6.b are linked nor how the indicators of SDG 17 can be directly apply to water-related developments. It is not just academic scholars but UN and other international agencies are also expressing that there are insufficient actions that point towards achieving the SDG 6 on water and sanitation. UN-Water has assessed the global progress towards meeting the targets of SDG 6 and concluded that, at the current rate of development, the world is not on track to meet the global targets of SDG 6 by 2030 (United Nations, 2018). Also, according to the World Bank, it is estimated that the capital costs of meeting SDG targets 6.1 and 6.2 could range from 74 to 166 billion USD per year, and this estimate does not include other SDG 6 targets nor the costs of operation and maintenance, monitoring, institutional support, and the required human resources (Hutton & Varughese, 2016). 2.3 The Nexus21 Between Human Rights and Sustainable Development The discourse on the interlinkages between human rights and development is nothing new. In fact, basic human rights have been discussed since much before the millennium, and so is the topic of development. Since the beginning of the millennium, the topic of ‘a rights-based approach to development’ has been debated amongst

When referend to ‘the nexus’ within the field of sustainable development, generally it refers to the ‘nexus’ concept that signifies the interlinkages between water, energy, and food (Benson et al., 2015; Muller, 2015). This is to clarify that the nexus mentioned in this study does not refer to the water-energyfood ‘nexus’ approach as a new form of water resource management. 21

various NGOs (Nelson & Dorsey, 2003). According to Nelson and Dorsey (2003), in development practices, NGOs and UN agencies are using the human rights-based approaches in promoting development. Three different trends were observed by Nelson and Dorsey (2003): 1) a rights-based approach to development; 2) collaborative campaigning by human rights and development NGOs; and 3) the adoption of economic rights orientation by human rights groups. This was very significant in the field of development, since it could suggest a potential paradigm shift for the development agencies and NGOs, “shifting perspective from development as a need and development work as gift, to development as a right and the goal of development assistance as an obligation to assist in fulfilment of individual entitlements” (Nelson & Dorsey, 2003, p. 2014). In 2008, the Office of the UN High Commissioner for Human Rights (OHCHR) stated that “the international human rights legal framework, to which all States have subscribed, must be seen as part of the solution and the baseline commitment on development” (as cited in Arts, 2017). However, it is unquestionable that there was and still is an obvious gap between the development practitioners and rights-based international agencies and NGOs. While international agencies and NGOs mainly stresses the human rights-based or humanitarian approaches and strategies, the majority of development practitioners mainly focus on the economic and social goods; they have been operating in two distinct sectors in the past (Nelson & Dorsey, 2003). Although it is observed that the human rights-based approach has become known to have positive potential, there are still debates on whether human rights are with a prerequisite, an integral component, or an end-result of development (Arts, 2017) Like the statement by OHCHR, if the human rights standards provide a baseline to establish accountability to protect and fulfil the basic rights of everyone, alleviating poverty and reducing inequality, then not only the development agencies and NGOs, but as well as governments and private sector, shall need to alter their objectives and make advocacy their main target (Nelson & Dorsey, 2003). In the last decades, development has become of a notion that encompasses all dimensions, including social, cultural, economic, political and environmental dimensions (Arts, 2017). With the growing interest in environmental protection and sustainable development, on top of economic aspect of development, environmental and social factors were now considered as equally as important. Moreover, it is also observed that the rights of the (whether man or woman, heterosexual or homosexual, regardless of skin colour) movement has been growing over the decades as well. As the importance of environmental protection and sustainability grew, and the development sector adapted and is still adapting to its new shift in the development

paradigm to protect and care for the environment. However, although the Universal Declaration of Human Rights (UDHR) provides a universal figure of the basic human rights, Kamruzzaman and Das (2016) point out that the scope and periphery of the rights differ depending on the socio-economic and political structure of each context. Inequality, discrimination, social exclusion and marginalization are at the heart of struggles for many, and whether the human rights-based approach to sustainable development, or the sustainable development approach of realising human rights for all, would really work for providing a better quality and dignified life is still being tested. On this note, there are other similar streams of scholarships, such as environmental justice, right to city, right to housing, inclusive development, community participation that tried to address the interconnections between the development aspect and human aspect together.

CHAPTER 3: METHODOLOGY In this chapter, the research methodologies adopted in this study and data collection techniques are explained, as well as the background of the case study context, with a brief history of water and sanitation provision in Kenya. 3.1 Research Methodology This research comprise of a literature review of international frameworks – Human Rights to Water and Sanitation (HRWS) and the United Nations Sustainable Development Goals (SDGs) – and the current debates on the interrelations and potential synergies of human rights-based approach and sustainable development approach. This was conducted through collection of secondary sources, such as official resolutions and reports from the Office of the UN High Commissioner for Human Rights (OHCHR), documents adopted by the UN General Assembly (UNGA), other reports by international agencies and papers from academic journals. For the data collection, it was conducted through policy documents and legislations of the Kenyan Government, such as the Kenyan Constitution, water and sanitation policies and frameworks, the Kenya Vision 2030 and medium term development plans, grey literature such as water service related reports by institutions, UN-Water GLAAS report on global status on WASH, and official report by the UN Special Rapporteur on the right to safe drinking water and sanitation, as well as papers from academic journals and books. The water, sanitation and hygiene (WASH) data of Kenya was collected mainly through empirical data from UN SDG reports, JMP reports by WHO/UNICEF and the data available through the website, and Voluntary National Review (VNR) by the Kenyan Government. All of the data collected are cross-analysed and evaluated to identify any gaps and interconnections between the human rights indicators and the sustainable development indicators on the provision of WASH 3.2 Case Study Context – Kenya To understand the current state of water and sanitation provision and its challenges, it is useful to go back in history to understand how everything started in the first place. The book History of Water Supply and Governance in Kenya (1895-2005) by Ezekiel Nyangeri Nyanchaga (2016) explains the development of water infrastructure in Kenya since the colonial rule (that lasted until 1963) to early 21st century. According to this book, the development of the water sector in Kenya dates back to the institutions established in the colonial era in the late 1890s. In 1888, the Imperial British East Africa Company (IBEACO) was founded to develop trade in East Africa (present day Uganda and Kenya) which was controlled by the British Empire at that time. The immigration of

the IBEACO to East Africa brought the assumption that there existed no water legislation, simply because there were no rules that were written (Nyanchaga, 2016, p.523). In 1895, the British Government bought out the IBEACO and declared Kenya as the British East Africa Protectorate, and the construction of Kenya Uganda Railway began, building railway lines from Mombasa to Kisumu, and then to present day Uganda. The construction of the Kenya Uganda Railway serves as an important event in the developments of townships and the creation of the nation Kenya, and the railways further produced the development of water supplies to serve the major towns, for the workers and the steam locomotives (Nyanchaga, 2016). The railway reached the present day capital Nairobi in 1899, and in 1906, the first major water supply system for Nairobi was constructed, bringing water from nearby Kikuyu springs. As the main developer, Uganda Railways established the first water supply schemes along the railway line stations across Kenya; the water supplies were developed and managed by Uganda Railways to serve major towns near the railway stations, and they became the pioneer for the development of water supplies in Kenya. Under the Director of Public Works, the general water supply administration was undertaken by the Hydraulic Branch of the Public Works Department (Nyanchaga, 2016, p.33). According to Nyanchaga (2016), there was no legislation on water resource uses before 1905, and very few or close to no water supply schemes. Water was a natural resource commonly held by the community, and certain water rights for specific uses were allocated to individuals or groups through a social negotiation process (p.32). With the establishments of townships, the in-coming European population rapidly increased, and with limited water supply, this created sewage disposal problems. This further led to disease epidemics, which accelerated the need for improved sanitation in the townships, and to resolve this, propagandas, campaigns and even coercion were used to make the people build and use latrines (Nyanchaga, 2016, p.34). Eventually, the State’s interest in intervening in the management of water supplies grew, because the public objectives of urban development and health did not always align with the objectives of the railway company. Until then, the water supplies were primarily to meet the needs of the railway and the European settlers, and their interest in economic benefits; and under the colonial administration and their land expropriation, the local Maasai community lost their controls of the natural resources, not just water, and even being forcibly removed from their land to areas with limited water resources (Nyanchaga, 2016, p.35). In the late 1920s, the State took over the ownership of main water supply in urban areas from Uganda Railways, and more developments in the water sector took

place to meet the demands of increasing population (Nyanchaga, 2016). In 1929, the first water legislation was finally enacted and operationalised – the first written water legislation in Kenya, and Water Act (Cap 372) was established in 1952. However, until 1955, there were no formal standards of water quality laid down in Kenya. With the independence of Kenya in 1963 from the British rule, institutions and administrations were handed over to the locals, and finally the Kenyans were in charge of their own development, including the water sector (Nyanchaga, 2016, p.38). In the 1650s and 60s, the government of Kenya promoted poverty alleviation with free basic services like fresh water supply. Just after the independence, water was still considered as a social good and it was paid or subsidised by the government. However, this led to unsustainable operation and maintenance of water supplies due to financial struggles and the accumulation of unpaid loans (Nyanchaga, 2016, p.50). Until 1964, the Hydraulic Branch of the Ministry of Works was responsible for water and sewerage development in urban areas, and rural water development was under the African Land Development Board (ALDEV) of the Ministry of Agriculture (Nyanchaga, 2016). These two organisations were amalgamated to form the Water development department in 1964 under the Ministry of Natural Resources, and later transferred to the Ministry of Agriculture in 1968 when the Water Development Division was established. During this period, the government recognised the crucial role water played in the economic growth, and in 1976, the First National Water Master Plan was established supported by the Swedish International Development Co-operation Agency (SIDA). Consequently, in the 1980s, with the Fourth National Development Plan of Kenya, there was a shift in water policy that everybody should pay for water services (Nyanchaga, 2016, p.51). This eventually led to commercialisation of water and sanitation facilities in Kenya, and decentralisation of water provision to local authorities were also promoted.

CHAPTER 4: RESULTS ANALYSIS AND DISCUSSION In this chapter, the findings of the case study are reported. The data collected from the different sources explained in the previous methodology chapter are presented in this chapter. The collected data are compared to identify any gaps and contradictions, and they are further cross-analysed for better understanding of their interlinkages and potential synergies. 4.1

Rights to Water and Sanitation in Kenya

4.1.1 Water and Sanitation Policies and Legislations in Kenya As it was explained in the previous section on the history of water and sanitation in Kenya, after Kenya’s independence from Britain in 1963, the newly established Kenyan government claimed that people did not have to pay for water to provide (Nyanchaga, 2016). However, the Independence Constitution (The 1963 Constitution) does not explicitly mention the Kenyan people’s rights to water or sanitation. The Chapter II of the 1963 Constitution talks about the Protection of Fundamental Rights and Freedom of Individual, but it does not address any of the rights related to living standards of the people such as housing, food, water or sanitation, rather it is very much focused on the safety and liberty of the individuals (pp. 32-49). Subsequently, in Chapter XII on Land, in Part 2 on Land Tenure, there is a section that talks about water (p. 157, para. 214); but it is only about the vesting of the water in Kenya from the former Colony and Protectorate of Kenya. In 2010, Kenya adopted a new constitution, which clearly states the Kenyan people’s rights to water and sanitation. Under Article 43 – Economic and social rights, it states that “every person has the right (b) to accessible and adequate housing and to reasonable standards of sanitation; [and] (d) to clean and safe water in adequate quantities" (Constitution of Kenya, 2010, p. 31). Moreover, the 2010 Constitution also states the National Government’s responsibility of “protection of the environment and natural resources with a view to establishing a durable and sustainable system of development, including, in particular—(c) water protection, securing sufficient residual water, hydraulic engineering and the safety of dams” (p. 174), and the County Government’s responsibility of “public works and services, including—(a) storm water management systems in built-up areas; and (b) water and sanitation services” (p.176). Kenya’s current legal frameworks related to water and sanitation are mainly based on the National Water Policy of 1999 and the Water Act 2002 (Biamah, 2016; Nyanchaga, 2016). In 2003, followed by the Water Act, National Water Services and Sanitation Strategy was established, as well as a number of institutions were created to support the water sector, such as the Water Services Boards (Nyanchaga, 2016). In

2004, the Ministry of Water and Irrigation, responsible for the water sector, established the National Water Services Strategy (NWSS) in 2004 and the first National Water Resources Management Strategy (NWRM) in 2006. For the latest legislation, the Water Bill was passed in 2015. Sanitation and hygiene are guided by the Kenya Environmental Sanitation and Hygiene Policy (KESHP) 2016-2030 under the Ministry of Health. In line with the policy, the Kenya Environmental Sanitation and Hygiene Strategic Framework (KESSF) 2016-2020 was published in 2016, with the support from the World Bank, which addresses the sanitation and hygiene issue in the country with its mission to provide universal access to improved sanitation. In addition, the UN-Water’s Global Analysis and Assessment of Sanitation and Drinking Water (GLAAS) report on National Systems to Support Drinking-Water, Sanitation and Hygiene: Global Status Report 2019 synthesises the overall policy, legislation and frameworks related to drinking water, sanitation and hygiene very clearly. The detailed information on policies and plans, national WASH targets, monitoring and regulation, identified vulnerable population, and finance data for Kenya can be seen in the Appendix 3. Some highlights to note is that on written documents, Kenya is doing a good job on recognising the Human Rights to Water and Sanitation, and it can be implied from their HRWS adaptation in the Constitution and legislations. However, it is observed that the monitoring and regulating part as well as the finance part are very weak, and a big gap between the aimed WASH targets and the actual performance is shown. 4.1.2

The Kenya Vision 2030 The government of Kenya published the Kenya Vision 2030 in 2007, before the

2030 Agenda for Sustainable Development, a new development plan to transform Kenya into a globally competitive and prosperous middle-income country (Nyanchaga, 2016). This development plan focuses on three pillars: economic, social and political. Under the social pillar, the topic of water and sanitation is being addressed. According to the Kenya Vision 2030 (2007), the vision for the water and sanitation sector is “to ensure water and improved sanitation availability and access to all by 2030” (p. 115). The plan indicates that the management of water (including wastewater) will have significant impacts on the economic, social and political sectors; hence it emphasises the importance of efficient water management. Figure 2 shows the linkages of water and other sectors as presented in the Kenya Vision 2030.

Figure 2 The linkages between water and other sectors presented in Kenya Vision 2030

Source: Kenya Vision 2030 (2007)

In the Kenya Vision 2030, it identifies eight challenges in the water sector: 1) the scarcity of water resource, 2) the security of water supply, 3) the water catchment management, 4) increased water demand due to population growth and economic development, 5) the quality of water, 6) the amount of irrigated land, 7) infrastructure development, and 8) water resources monitoring. This development plan is further divided into five-year Medium Term Plans22 with specific goals and strategies. Figure 3 shows an example of the specific goals and strategies for 2012. It is interesting to note that in the Kenya Vision 2030, there are number of times where ‘human rights’ has been mentioned, on a general sense, as well as property rights, consumer rights, political rights, civil rights, citizenship rights, and the rights of women and children, person with disabilities, the elderly and refugees; however, the rights to water and sanitation are never mentioned. In contrast, the term ‘sustainable development’ was mentioned and emphasised as a final goal throughout the document.

The first five-year Medium Term plan was for 2007-2012; the second 2013-2017; and currently there is the 2018-2022 plan.

Figure 3 Goals and Strategies for the water sector in Kenya for 2012

Source: Kenya Vision 2030 (2007)

The more detailed development plans are made by each regulating body, such as the Strategic Plans by Water Services Regulatory Board (WASREB). In contrast to the Kenya Vision 2030 development plan, WASREB’s Strategic Plan for 2018-2022 (2015), its mission states “to provide a regulatory environment that facilitates efficiency, effectiveness and equity in the provision of water services in line with the human right to water and sanitation” (p. 10). It also emphasises that the Kenyan Constitution “entrenched the right to water and sanitation in the bill of rights, effectively making water and sanitation a human right” (p. 14 & p. 41), and states that “WASREB shall focus its strategies to support the pillars while assuring the human right to affordable and safe water” (p. 25). Moreover, WASREB publishes Impact reports annually to the public since 2008, assessing the performance in the water sector, such as water and sanitation coverage, water quality, etc. According to the latest Impact report (Issue No.12) by WASREB (2020), water coverage in urban area (2018-2019 data) is at 59%

and sewerage sanitation coverage is at 17%.23 Figure 4 shows the trend in water and sewerage coverage in Kenya from 2009 to 2019 according to the WASREB’s Impact report. Figure 4 Trend in Water and Sewerage Coverage in Kenya 2009-2019

Source: WASREB (2020)

4.1.3

The UN Special Rapporteur’s Visit to Kenya The status of the realisation to Human Rights to Water Sanitation was also

observed and rated in-person by the UN Special Rapporteur. In 2014, Catarina de Albuquerque, the first UN Special Rapporteur on the right to safe drinking water and sanitation, appointed by the Human Rights Council, have undertaken an official visit to Kenya with an invitation from the Government of Kenya, on a mission to investigate the water and sanitation status in Kenya and the challenges in the realisation of the human rights to water and sanitation (OHCHR, 2014).24 In the statement, Catarina de Albuquerque points out that the Government of Kenya has legal obligations to take deliberate measures to ensure the realisation of the human rights to water and sanitation, because the government has ratified relevant international human rights treaties in the past (OHCHR, 2014).25

However, the data from the Impacts reports will not be used in this study, since there is a limitation in the data; the data only covers the population served by Water Service Providers (WSPs), not the entire population of Kenya. 24 Catarina de Albuquerque’s statement on Kenya’s water and sanitation status includes water and sanitation data from the year 2012, hence this data is not presented in this section to avoid confusion, and more recent data is presented in the later section for SDG6 performance. 25 Including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, the African Charter on Human and Peoples’ Rights and the African Charter on the Rights and Welfare of the Child (A/HRC/30/39/Add.2).

In the Report of the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation (2015), it further emphasises that the government has an obligation to ensure the rights to water and sanitation on a non-discriminatory basis, giving special attention for the disadvantaged or marginalised groups (A/HRC/30/39/Add.2, para. 4). The report also acknowledges that Kenya was one of the first States that included the basic rights to water and sanitation in the constitution, and that it demonstrates a clear commitment to realising such rights. Nevertheless, it emphasises that the government has an obligation to develop national standards and indicators at policy level, to monitor every element of the human rights to water and sanitation (para. 20), with consideration of existing service levels, local contexts, and settlement types (para. 21). The report stresses that it is critical for the government to clarify the responsibilities of actors to be accountable (para. 22), since there are some contradictions in some policies, such as between the County Governments Act of 2012 and the Water Bill (para. 19).26 As mentioned in the earlier section on the human rights-based approaches, the availability, accessibility, affordability, acceptability and quality/safety (AAAAQ) approach is considered in the report by the Special Rapporteur. The report points out that from the data collected, there are significant inequalities in the provision between formal and informal settlements, and between urban and rural areas (para. 24). It was observed by the Special Rapporteur that collecting drinking water takes a significant part for daily lives of many Kenyans, thus not very accessible or always available (para. 25). The quality of water in Kenya is monitored and reported by the Water Services Regulatory Board (WSRB), which is under the responsibility of the Ministry of Health, but unfortunately this only applied to the formal sector, and the quality of water in informal and small-scale providers and not being monitored, which makes it not always acceptable or safe to drink (para. 26). It was also observed that the prices of water at unregulated water points were much higher than the piped water tariffs, which makes it unaffordable for those who are living in poverty (para. 33). The report states that the policy of Kenya aims to ensure a minimum of 20 litres per day per person; however, it has been observed that many people in low-income households consume less than 20 litres a day, and many do not have reliable source of water supply (paras. 46-48). For sanitation, the performance is really poor, and according to the report, one of the challenges is that the policy and legislation on sanitation in Kenya entitles

The County Governments Act can be interpreted as giving the competence of regulation to county governments, whereas the Water Bill gives the Water Services Regulatory Authority (WSRA) the regulatory powers and functions to determine and prescribe national standards for the provision of water services, approve water and sewerage tariffs imposed by the county water services providers and monitor compliance with standards by the water services providers, among others.

individual households to be responsible of having their own sanitation facilities while for many households building a sanitation facility is unaffordable or they do not have the authority to build one due to tenure issues (para. 28). It is noted that although it is not required for the government to provide free services for all; however, in the case where people cannot afford to enjoy their basic rights, the government has the obligation to provide direct services (para. 29). Also, it was observed that there are insufficient or lack of investment in sewerage and wastewater management in Kenya, and to realise the human right to sanitation, the government should put more efforts in promoting and emphasising the use of toilets and safe disposal of the waste matter (para. 30). Moreover, there are no affordability standards for sanitation nor for the informal services to empty the pit latrines and septic tanks (paras. 43-44). Hence, the report urges the government to provide financial and technological support to improve the affordability and safety of sanitation services (para. 44). While it was acknowledged in the report that Kenya is indeed making efforts in better managing the water supply by undertaking water sector reforms (para. 51), it also addresses that the water and sanitation services in Kenya are not sustainable (paras. 52-56). The high levels of non-revenue water (NRW) due to technical problems, leakages and illegal connections is one of the concerns in sustainable management of water resources (para. 55), since the cost recovery is an important aspect in sustaining such system to cover the fees for operations and maintenance (para. 56). Finally, the report also addresses the inequality in the provision of water in urban and rural areas (paras. 71-74), the lack of provision in informal settlements (paras. 75-77), and special attention on women and girls (paras. 78-81); and the report ends with recommendations to the Kenyan Government (para. 84) and to the international community (para. 85). 4.2

Sustainable Development Goals (SDGs) Performance in Kenya From the earlier section on Kenya’s current development Kenya Vision 2030, it

was observed that the government of Kenya stresses the sustainable development of the country. In this section, the overall SDGs performance in Kenya and specifically the SDG 6 are presented, analysing the water and sanitation gaps between the policies and the actual implementations.

4.2.1 Sustainable Development Report 2021 According to the Sustainable Development Report 2021,27 the overall SDGs performance for Kenya stands at 118 of 165 UN member states, with the SDG index score28 of 60.60 out of 100. Figure 5 shows the trend in the overall SDGs performance for Kenya since the year 2000. It can be observed that there is an improvement in the overall performance, from 51.26 to 60.60. Figure 5 Sustainable Development Goals Performance Index Scores for Kenya, 2000-2021

Source: Sustainable Development Report (2021)

Although this graph shows a positive trend for the SDG performances in Kenya, when compared amongst the SDGs, the performance for SDG 6 has the third lowest score, below 50, as shown in Figure 6. From Figure 6, it can be observed that the SDG 9 and 10 with lowest scores29 are closely related to SDG 6, since achieving the water goal would require building resilient infrastructure, sustainable industrialisation, innovation, and reducing the social and economic inequality in water provision for the people.

The Sustainable Development Report, which presents the SDG Index and Dashboards for all UN member states, is prepared by team of independent experts at the UN Sustainable Development Solutions Network (SDSN) and the Bertelsmann Stiftung. 28

The SDG Index score is given according to the selected indicators by the experts. More information is available on the SDG index score and methodology here: https://s3.amazonaws.com/sustainabledevelopment.report/2021/2021-sustainable-development-report.pdf 29

SDG 9 is on building resilient infrastructure, promoting inclusive and sustainable industrialisation and fostering innovation, and SDG 10 is on reducing inequality within and among countries.

Figure 6 Average Performance by SDGs in Kenya

Source: Sustainable Development Report (2021)

When looking at the reported Kenya’s SDG 6 performance in detail, as shown in Figure 7, it can be observed that the SDG 6 data that were considered are outdated. Moreover, not all 12 of the SDG 6 indicators mentioned in earlier section are considered in the methodology. Overall, among the 247 indicators of 17 SDGs, only 92 indicators are considered for this overall SDG index score rating.30 Nevertheless, when compared to other countries, it can be seen that the performance in sub-Saharan Africa in general are poor compared to other continents, as observed in Appendix 4.31 Figure 7 Details of the SDG 6 performance for Kenya

Source: Sustainable Development Report (2021)

4.2.2

Joint Monitoring Programme (JMP) Data by UNICEF and WHO As presented in chapter 2, section 2.2 on the SDG 6, it was mentioned that as

a part of the UN-Water’s Integrated Monitoring Initiatives (illustrated in Figure 1), the

For a comparison, a total of 119 indicators (7 indicators for SDG 6) were used to rate Germany, who is on rank 4 with the score of 82.5. 31 The data on the population using safely managed water and sanitation services are not available for Kenya on the Sustainable Development Report.

targets 6.1 and 6.2 on WASH are monitored through the Joint Monitoring Programme (JMP) by WHO and UNICEF.32 While for the Millennium Development Goal 7 (targets c and d), the classifications for water and sanitation facilities were rated as ‘improved’ or ‘unimproved;’ for the Sustainable Development Goal 6 (targets 6.1 and 6.2), JMP has introduced additional criteria and the ladder system to classify the service levels, which can be seen in Appendix 5. Furthermore, JMP has created 26 indicators in evaluating the WASH data, which can be seen in Appendix 6.33 The JMP 2018 update on the Core questions on drinking water, sanitation and hygiene for household surveys indicates that the SDG 6 targets 6.1 and 6.2 on WASH are closely related to SDG 1 target 1.4 on access to basic services. The WASH related targets and indicators are shown in Figure 8, with important words highlighted in bold for emphasis. It can be observed that accessibility, safety and affordability for drinking water (target 6.1) and accessibility, adequacy and equitability for sanitation and hygiene (target 6.2) are taken into account. When it comes to the indicators, only safe management of the services are considered. Figure 8 Targets and Indicators for the 2030 Vision for Household WASH

Source: JMP (2018)

According to the latest WASH data available by JMP, Kenya has 59% of basic drinking water coverage, 29% of basic sanitation, and 25% of basic handwashing facilities, as shown in Figure 9.34 However, when this data is divided between urban

WHO and UNICEF have been producing estimates of national, regional and global progress on drinking water, sanitation and hygiene (WASH) since 1990. 33

More information on the JMP ladder, indicators and the core questions for drinking water, sanitation, hygiene (WASH), and menstrual hygiene can be found in the JMP 2017 Methodology Report and 2018 Report which can be found in the Bibliography. 34 The latest household WASH data of Kenya available by JMP is the 2017 data (as of June, 2021), which was reported in the 2019 JMP Progress Report. The WASH data on global, regional and national levels can be seen and compared from the JMP website: https://washdata.org/

and rural, or by different types of services, the graph looks quite different. Figure 10 shows the WASH provision gaps between urban and rural areas of Kenya. Figure 9 Kenya’s Overall Household WASH Data, 2017

Source: JMP Website

Figure 10 Kenya's Household WASH Data Based on Urban/Rural Area, 2017

Source: JMP Website

Looking at the trend in WASH provision over the years 2000-2017, it can be observed that it has a positive trend, as shown in Figure 11. However, when the data from urban and rural areas are observed separately, it can be seen in Figure 12 that while it shows a positive trend in rural areas, it shows a slight decrease in service levels in urban areas. This is assumed to be due to rapid increase in population in

urban areas, in which the speed of water service provision cannot catch up with the speed of urbanisation. This can be illustrated with the population data as shown in Appendix 7.35 Figure 11 Kenya's Household Water Provision Trend, 2000-2017

Source: JMP Website

Figure 12 Kenya's Household Water Provision Trends - Urban (left) and Rural (right), 2000-2017

Source: JMP Website

Moreover, when the water data is observed based on the facility types, it can be seen that while the piped network has more or less remained around 30% coverage, the non-piped water services have increased over the years (Figure 13). This data is also different based on urban or rural setting. As it can be seen in Figure 14, while the piped water service coverage has decreased over the years, from approximately 84% to 62%, in urban areas, the non-piped water service coverage has increased, from approximately 8% to 27%.36

The population data graphs are not included in the data results section, because the SDG 6 indicators are based on the number of population, but the author has included in the Appendix for reference. 36 More detailed data on the years 2000 and 2017 are included in the Appendix for reference.

Figure 13 Kenya's Household Water Provision Trend Based on Facility Type, 2000-2017

Source: JMP Website

Figure 14 Kenya's Household Water Provision Trend Based on Facility Type – Urban (left) and Rural (right), 2000-2017

Source: JMP Website

Kenya’s sanitation data, compared to the drinking water provision, has much lower performance. The overall sanitation service level trend is illustrated in Figure 15, and urban and rural data in Figure 16. Similar to the water data presented, there shows a different pattern in urban and rural settings, with negative trend for the basic sanitation coverage in rural areas. When the population data is observed, it can be seen that the provision of basic sanitation didn’t increase much in rural areas over the years. The comparison graphs are available in Appendix 8.

Figure 15 Kenya's Household Sanitation Provision Trend, 2000-2017

Source: JMP Website

Figure 16 Kenya's Household Sanitation Provision Trend - Urban (left) and Rural (right), 20002017

Source: JMP Website

When the sanitation data is observed based on the facility types, it can be observed that the majority of the sanitation facility comprise of the use of latrines, as shown in Figure 17, and the different trend patterns between urban and rural settings are shown in Figure 18. Figure 17 Kenya's Household Sanitation Provision Trend Based on Facility Type, 2000-2017

Source: JMP Website

Figure 18 Kenya's Household Sanitation Provision Trend Based on Facility Type - Urban (left) and Rural (right), 2000-2017

Source: JMP Website

One notable difference in the SDG JMP data compared to the previous MDG JMP is that in the 2019 JMP report Progress on Household Drinking Water, Sanitation and Hygiene 2000-2017, the data on handwashing facilities has been included (Please refer to Appendix 9 for more details). Figure 19 shows the rankings of the proportion of the population with basic and limited handwashing facilities in sub-Saharan Africa, with approximately 25% of coverage of basic and 35% or limited handwashing facilities in Kenya. Figure 19 Household Hygiene (handwashing) Data - Sub-Saharan Africa, 2017

Source: JMP Website

The hygiene data is further divided into mobile or fixed handwashing facilities, and it can be observed from Figure 20 that a big portion of sub-Saharan African countries, including Kenya, use mobile handwashing facilities at home. Figure 20 Proportion of Population Using Mobile/Fixed Handwashing Facilities at Home, 20152017

Source: JMP (2019)

Another focus that the 2019 JMP report comprise of is that it draws special attention to women and girls, menstrual hygiene, and an emphasis on the inequality in water and sanitation provision. Figure 21 shows an example of urban/rural and economic inequalities in basic drinking water provision in some countries.37 On the left graph, the inequality in the provision of drinking water between urban and rural areas are illustrated. The further the dots are, larger the gap between service provision. The right graph presents the inequality in provision based on your income groups. As observed in earlier graphs, the inequality in the provision of drinking water in Kenya in urban and rural areas are quite large. The inequality between the rich and the poor are even larger as shown in Figure 21.

The JMP metrics for assessing progress in reducing inequalities in WASH is included in the Appendix 10 for further reference.

Figure 21 Graph illustrating inequalities in Basic Drinking Water Provision in Urban/Rural Areas in Selected Countries, 2017

Source: JMP (2019). Edited by the author.

4.2.3

The Voluntary National Review (VNR) 2020

In June 2020, the Kenyan government published the second Voluntary National Review (VNR) on the Implementation of the SDGs. On the report, it states that “leaving no one behind is at the heart of Kenya’s development agenda as stipulated in Vision 2030” (p. 28), and that together with the Kenya National Bureau of Statistics (KNBS) and Kenya National Commission on Human Rights (KNCHR) those at risk of being left behind was identified in efforts to implementing a Human Rights Based Approach to Data (HRBAD). Moreover, there are institutions such as the National Human Rights Institutions (NJRIs) in Kenya that ensures a rights-based approach in the implementation of the SDGs, and in 2019, the Kenyan government has established the National Committee on International and Regional Human Rights Obligations for reporting and following up on the regional and international obligations for human rights (VNR, 2020, p. 33). In alignment with the Kenya Vision 2030, the report states that in the focus of water and sanitation, Kenya’s current five-year Medium Term Plan (2018-2022) aims to achieve “a nation living in a clean, secure and sustainable environment, conservation, and able to deal with pollution and waste management” (VNR, 2020, p.23). The VNR report also addresses the significance of SDG 6 and identifies its interlinkages with other SDGs (p.27). Regarding the SDG 6 performance data presented by the VNR 2020, the numbers are very different from the JMP estimates. The numbers presented by the VNR for indicators 6.1.1 and 6.1.2 are presented in Table 4 for reference (p.54).

Table 4 Kenya’s WASH Data on Indicators 6.1.1 and 6.1.2 Reported in the VNR 2020

Indicator 6.1.1: Proportion of population using safely managed drinking water services The proportion of households using safely managed drinking water services increased from 72.6 per cent in 2016 to 73.3 per cent in 2019. Subsequently, the proportion of individuals using safely managed drinking water increased from 68.8 per cent in 2016 to 72.4 per cent in 2019. The increase was attributed to the construction and expansion of water supply schemes in urban and rural areas by both National and County governments

Indicator 6.2.1: a) Proportion of population using safely managed sanitation services The proportion of households with safely managed sanitation services rose from 65.7 per cent in 2016 to 68 per cent in 2017 and 82.5 per cent in 2019. On the other hand, the proportion of individuals with safely managed sanitation services rose from 59.3 per cent in 2016 to 81.5 per cent in 2019. The sector target is to increase the percentage of the national population with access to improved sanitation from 68 per cent in 2017 to 80 per cent by 2022. Source: VNR (2020)

It is not clear where these numbers came from or represents which population of the country, since the sources are not stated. For reference, the data table is added in Appendix 11. In addition, the report also presents the data on the indicator 6.b.1 as shown in Table 5. The government of Kenya seems highly confident to present that the 47 County governments are operating water and sanitation policies and procedures, engaging the local communities 100% in the past few years, which seems quite unrealistic. Overall, although the human rights are mentioned several times throughout the document, in a more general sense, there is no referring to human rights to water and sanitation explicitly in the VNR 2020. Table 5 Kenya’s WASH Data on Indicator 6.b.1 Reported in the VNR 2020 Indicator 6.b.1: Proportion of local administrative units with established and operational policies and procedures for participation of local communities in water and sanitation management

The proportion of local administrative units (47 County governments) with established and operational policies and procedures for participation of local communities in water and sanitation management has remained the same at 100 per cent in the 2017-2019 period. Source: VNR (2020)

CHAPTER 5: CONCLUSION In this chapter, the overall aim and the specific objectives are restated, along with the summary of the findings from the research related to the specific objectives. Conclusions from this research is derived and linked to the research aim. Furthermore, the value of this research is stated, as well as the limitations. Finally, recommendations for further research is provided. 5.1 Conclusion The unfortunate and tragic situation of global water and sanitation crisis affect people in low-income households much more than anyone. The consequences of this crisis is experienced even more in the Global South, especially in the region of subSaharan Africa, where freshwater source is relatively limited, and social and economic inequalities are higher. In the hopes for realising the safe and clean water and adequate sanitation provision for all, this research was conducted to study the nexus and the interrelations of the Human Rights to Water and Sanitation (HRWS) and the United Nations Sustainable Development Goal (SDG) 6 – ‘the water goal’ – to identify any existing gaps between the implementations of human rights-based and the sustainable development approaches through a case study of Kenya. Water and sanitation policies and legislations of Kenya were reviewed to identify references to Human Rights to Water and Sanitation, was well as water and sanitation related frameworks and development plans of Kenya. The overall Sustainable Development Goals performance and specifically the SDG 6 data of Kenya was analysed, to evaluate the current WASH situation in Kenya. The data collected were cross-analysed with the human rights-based approaches in consideration. From the analysis of collected data, it was concluded that there are potential synergies in combining both human rights-based approach with sustainable development approach. On the other hand, it was observed that there are other factors that affect the realisation of universal water and sanitation provision in Kenya, including the colonial history of Kenya and how it created unequal development in the country; the rapid urbanisation that is hard for water service providers to keep up with the speed; lack of frameworks and policies on sanitation and wastewater management; insufficient amount of financial and technical support from the government; as well as the lack of strong institutions.

5.2 Value of This Research As mentioned earlier, the proportion of people in extreme water and sanitation poverty is much higher in the Global South. This unfortunate condition is worse when combined with the geographical limitations of its local climate. Sub-Saharan Africa

suffers from this consequence much more than other parts of the world. This research provides insights to how the current situation in water and sanitation related policies in the national level, international human rights framework on water and sanitation and Sustainable Development Goals are interrelated. This research can be duplicated in any other country fighting for the basic rights to clean water and adequate sanitation, along with sustainable development of the country. This research adds value to the current debates on the human rights-based approach to sustainable development in the water sector. This research can also lead to water policy reforms and paradigm shifts in water management and governance. I hope that this case study will inform and give insights to individuals, practitioners, academic scholars, researchers, and governments on the Human Rights to Water and Sanitation and the Sustainable Development framework, their inter-connections and potential synergies, in pursuit of safe and clean water and adequate sanitation provision for the better quality and dignified life for all.

5.3 Limitations In conducting research, there were methodological limitations due to the current situation of COVID-19 pandemic. The research design had to adapt to desk research, because it was not feasible to travel to Kenya for any fieldwork. Moreover, due to the limited time given, the study was not able be conducted so much in-depth, and due to access to certain academic journals or books, there was a limitation in collecting data for research background and data collection

5.4 Recommendations For future research, it is recommended that a better study of the local context is conducted, as well as more in-depth review of literature review for theoretical frameworks and analysis of policy documents. Moreover, it is recommended to obtain the most up to date empirical data for accuracy in evaluation of the current state. Household surveys, and interviews can be also useful in understanding the expectations of the types of rights the people want. Moreover, specific human rightsbased approach tools for frameworks can be used to analyse the data with more coherence to the analysis.

CHAPTER 6: Bibliography

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APPENDICES Appendix 1. Human Rights to Water and Sanitation Indicators (with SDG6 indicators highlighted) (Source: OHCHR, n.d.)

Appendix 2. Integrated Monitoring Guide for Sustainable Development Goal 6 on Water and Sanitation: Targets and global indicators (Source: UN-Water, 2017)

Appendix 2. Integrated Monitoring Guide for Sustainable Development Goal 6 on Water and Sanitation: Targets and global indicators (continued)

Appendix 3. UN-Water’s Global Analysis and Assessment of Sanitation and Drinking Water (GLAAS) report on National Systems to Support Drinking-Water, Sanitation and Hygiene – Kenya Data (Source: UN-Water, 2019)

Appendix 4. World Maps showing SDG Performance Index Scores from JMP WASH Database (Source: JMP website)

(a) SDG overall score

(b) SDG 6 – Clean Water and Sanitation (overall score)

(d) SDG 6 – Indicator on Population using at least basic sanitation services (%)

Appendix 5. JMP Household WASH Core Questions, Indicators, and New Service Ladders (Source: JMP, 2018)

Appendix 6. 26 indicators Produced by JMP (Source: JMP, 2018)

Appendix 7. Kenya’s Household Drinking Water (left) and Sanitation (right) Provision Trend – Urban (a) / Rural (b) Comparison(showing population), 2000-2017 (Source: JMP Website)

(a) Total

(b) Urban

Appendix 8. Kenya’s Household Drinking Water (left) and Sanitation (right) Provision Trend Based on Service Type - Urban (a) / Rural (b) Comparison (showing population), 2000-2017 (Source: JMP Website)

(a) Total

(b) Urban

Appendix 9. WASH Data on the Progress on Household Drinking Water, Sanitation and Hygiene 2000-2017 – Kenya’s WASH Data Estimates (Source: JMP, 2019) (a) Drinking Water Data Estimates

Appendix 9. WASH Data on the Progress on Household Drinking Water, Sanitation and Hygiene 2000-2017 – Kenya’s WASH Data Estimates (continued)

(b) Sanitation Data Estimates

c) Hygiene Data Estimates

Appendix 10. JMP Metrics for Assessing Progress in reducing inequalities in WASH (JMP, 2019)

Appendix 11. Kenya’s WASH Data on Selected SDG Indicators (Source: VNR, 2020)

Masters Thesis: The Nexus between Human Rights and Sustainable Development: WASH in Kenya

Articles inside

Table 5 Kenya’s WASH Data on Indicator 6.b.1 Reported in the VNR 2020

Urban/Rural Areas

Home, 2015-2017

left) and Rural (right), 2000-2017

Figure 1 UN-Water Integrated Monitoring Initiatives for SDG 6

Figure 11 Kenya's Household Water Provision Trend, 2000-2017

Figure 4 Trend in Water and Sewerage Coverage in Kenya 2009-2019

Table 1 Research Aim and Objectives

Figure 3 Goals and Strategies for the water sector in Kenya for 2012

Table 2 Millennium Goal 7 targets c and d

Figure 8 Targets and Indicators for the 2030 Vision for Household WASH

Agencies