Figure 1 UN-Water Integrated Monitoring Initiatives for SDG 6

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.

20 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

21 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.

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.

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