South Africa

In 1996, South Africa adopted a new constitution that includes a constitutional right to water and a requirement that the state “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights.” In order to implement this right, South Africa passed legislation, promulgated regulations, and developed a strategic framework. It has made significant progress, but has not yet fulfilled the rights to water and sanitation for an estimated 7-15 percent of the population. Those who have yet to receive basic water and sanitation services typically live in the poorest regions of the country. The South African Human Rights Commission reported in 2014 that 11 percent of households do not have any sanitation and that 26 percent of households in certain areas lack adequate services due to poor and deteriorating systems. High percentages of households in the rural former apartheid era homelands lack any of these services. So has the rights-based approach failed? In 2000, the South African Constitutional Court ruled that the South African government must make reasonable efforts toward the progressive realization of such rights. It held that the Constitution’s right of access to adequate housing meant that the government had an obligation to take reasonable legislative and other measures to achieve progressive realization of this right within the confines of available resources. Therefore, the Court examined the government’s efforts toward providing housing against this standard and would apply the same analysis to the right to water. When it examined the fact that many in South Africa remain without access to clean water, the South African Human Rights Commission recommended changes at the national, provincial, and local levels. It called for budgets and decisions that are transparent and for the engagement of communities in budgeting and development decisions. It also noted that decision makers should consider the needs of different groups in providing access, including the safety of women and girls. The right to water and sanitation is not to be traded of against other social and economic rights, according to the Commission. Additionally, the Commission required the national government to provide additional technical assistance and financial support to ensure that local governments are able to implement the mandate and to upgrade and repair water and waste water treatment plants that are not functional. Thus, while providing a constitutional right can provide other means towards achieving an environmental goal, it is not a panacea. Governments cannot give what they do not have, and courts will look at all of the circumstances before ordering a remedy.