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The right to water is defined by three broad considerations: availability, quality and accessibility.

Sharon Hofisi and Mila Owen Correspondents—

In the wake of sobering statistics, considerable media attention has been given to the rise in typhoid cases, suspected and confirmed.

On January 4, 2017, Lloyd Gumbo and Innocent Ruwende reported in The Herald that the Harare City Council had from October 2016 contributed to 76 percent of the overall typhoid cases countrywide. Two deaths, 126 suspected and 123 confirmed cases have been reported in Harare and 2 225 suspected cases have been reported nationally (with 85 confirmed positive and nine deaths). As a result, the city council established a treatment camp at Beatrice Road Infectious Diseases Hospital in Harare.

This attention calls for investigative and preventative models to be presented by those tasked with formulating, influencing and implementing water, health and housing polices at micro and macro levels and necessitates a heuristic synthesis of the population data and public authority action.

Zimbabwe has a progressive Constitution and a comprehensive Bill of Rights that safeguard the rights to water and health.

Both rights are progressively realised; that is, they are not instantaneously achieved as is the case for instance with political rights such as the right to vote. Their realisation depends on legislative and other (usually policy-oriented) measures taken by the Government and is limited by resource availability. The State’s constitutional obligation to protect, promote, respect and ensure these rights is altered by these considerations. This article therefore seeks to understand what standard of State obligation the multi-sector institutional policy response in dealing with typhoid should be held to (we refer to the urgent response by Health and Child Care Minister Dr David Parirenyatwa to engage three other line ministers to craft ways of averting further typhoid cases).

Policy can be meritoriously formal or informal. It is not just Harare City Council, but also residents and their oversight associations, the academia and civic society who have to be engaged in the typhoid response. The reasons are obvious: residents and the council have a mutual relationship based on effective service delivery.

Academia and civil society can influence formal and informal policies through empirical research about health policy formulation, implementation and impact. Tailored responses by the council, such as the ban on illegal vending for a period, could then be analysed based on informed assessment reports on information gathered from key populations that are considered to be furthering the spread of typhoid.

This ensures that there is citizen involvement in the regulatory process. Ultimately, this culminates in good governance and its envisaged tenets of accountability, transparency, justice and responsiveness, which form part of our Constitution’s founding principles.

The Zimbabwean Constitution frames the right to water under “Right to food and water”. Harare City Council is mandated to provide safe, clean and potable water. This right is provided subject to the constitutional conditions referred to above and to limitations that include general limitations in Section 86 and public emergency cases in Section 77 of the Constitution.

The recent moratorium on vendors should be evaluated against the limitations under Section 86 such as public health and general public interest. This general limitation should be pragmatically understood as a compromise or what is in constitutional parlance is referred to as the margin of appreciation (MOA) given to states in their obligations to ensure fundamental rights. The margin of appreciation limits the abrogation from the standard while allowing for flexibility based on context.

Under the United Nations International Covenant on Economic, Social and Cultural Rights (ICESR), General Comment No. 15, the right to water is defined by three broad considerations: availability, quality and accessibility. The margin of appreciation applied under international law to ICESR usually operates on a strong assumption that retrogressive steps are prohibited, that is steps taken by the State to reduce availability, quality and accessibility of rights enshrined therein including water.

Under this standard, states have a minimum core obligation to maintain essential levels of the right to water. For the right to water, this includes provision of a minimum essential amount to prevent disease that is safe for personal and domestic use, equitably and on a non-discriminatory basis. Further, the State is obliged to provide physical access to a regular supply that is sufficient and secure and to adopt and implement effective national strategies for providing water to the whole population on these terms as well as to monitor and assess progress of these strategies.

Finally, the State is required to take additional steps to address water provision to marginalised groups and prevent, treat and control water-borne disease.

The steps to be taken in our case are context-specific. Quality may be determined by water testing. Availability would be determined based on number of boreholes that service particular population in a given suburb. Accessibility can be determined by looking at the distance travelled by residents to access the nearest water supply. It also considers affordability.

The council has policy, for instance, on reduction of rates for senior citizens. Before water cuts and water rationing, an assessment report of their affordability on a household basis can be done. Once this is done, residents and the council would then craft workable strategies to ensure that the council is sufficiently resourced to purchase water treatment equipment, conduct effect policy impact researches and avoid serious conflicts with residents.

The judiciary, as our national arbiter, has had occasion to determine on water rights in such cases as Farai Mushoriwa v City of Harare and Anor. The council’s response to this court decision should be formalised, implemented and widely communicated to residents. The council and residents can use these cases strategically and pragmatically to engage constructively in the typhoid response.

Further, the typhoid outbreak does not only implicate water rights and health rights. Practical considerations have to be given to emerging settlements around Harare. The council and the Government must quickly regularise settlements so that they become habitable. Provision of water sources in these areas has to be prioritised if ruinous effects of typhoid are to be avoided.

Sharon Hofisi is a lawyer and lecturer at the University of Zimbabwe. He is contactable at [email protected] . Mila Owen is a JD student at Harvard Law School.