Water, human rights and social conflict: South African experiences.

• Author: Bond, P.

Abstract

This article reviews some of the debates regarding the right to water, applying these to the experiences of water delivery in post-apartheid South Africa. Of central importance, we find, are international trends towards cost-recovery and the commercialisation of water, whether through privatisation or corporatisation. Against such trends, which result in water being priced beyond the reach of poor households, popular resistance to water injustice has taken forms ranging from direct protests, to autonomist-style reconnections and destruction of prepayment meters, to a constitutional challenge over water services in Soweto. Do such water wars have the potential to shift the focus from market-based and 'sustainable development' conceptions to policies more conducive to 'social justice', even in the face of powerful commercial interests and imperatives? And can rights mobilisation be part of this struggle for a more socially-just model of water delivery, which views water primarily as a social rather than a commercial good?

Keywords:

Water rights, social justice, cost-recovery, commercialisation, pre-paid water meters, popular struggles, South Africa

1. Introduction: Ambiguous rights

   'The Republic of South Africa is one sovereign, democratic state, founded on the following values: human dignity, the achievement of equality and the advancement of human rights and freedoms' ... Everyone has the right to have access to ... sufficient water'.

   Constitution of the Republic of South Africa, 1996 (1)

   'We want the water of this country to flow out into a network--reaching every individual--saying: here is this water, for you. Take it; cherish it as affirming your human dignity; nourish your humanity ... Water--gathered and stored since the beginning of time in layers of granite and rock, in the embrace of dams, the ribbons of rivers--will one day, unheralded, modestly, easily, simply flow out to every South African who turns a tap. That is my dream'.

   Antjie Krog, South African writer, 1997 (2)

   'ANC-led local government will provide all residents with a free basic amount of water, electricity and other municipal services, so as to help the poor. Those who use more than the basic amounts will pay for the extra they use'.

   African National Congress (ANC) campaign promise, 2000 municipal elections

   South Africa first confronted its 'water apartheid' problem when, at the World Summit on Sustainable Development in Johannesburg on 31 August 2002, an estimated 30,000 marchers braved threats of a protest ban to demand that the United Nations (UN) move away from 'Type 2 Partnerships' between government and businesses (Type 1 are government-government). On a daily basis, dissatisfaction has swelled against insufficient and inequitable water services. Of approximately 5900 protests recorded by the South African Police Service between 2004-05 (per capita probably the highest rate in the world), a great many--perhaps the majority--were about inadequate water and sanitation services. (3) Rural areas are underserviced due to lack of operating subsidies which mean that many taps installed in the post-apartheid era are now dry. Using the minimalist definition of water access mandated in the Reconstruction and Development Programme--namely, in the short term, 25 litres per person per day within 200 meters of a household)--the most rigorous study to date found 57 percent of projects were either 'not working' or 'problematic'. (4) Using the medium-term objective of 50-60 litres per person per day on site, a tiny proportion of the projects were working. And for those lucky to be on local government municipal water grids, mass disconnections due to inability to afford water prices affect more than 1.5 million South Africans each year, to which even the government has admitted. (5) To what extent, if any, are human rights relevant to such people?

   Upendra Baxi has outspokenly illuminated the limits of human rights models that are not based on an understanding of power relations and structural inequalities (6). Market-friendly rights regimes allow big dam developments, for example, to bulldoze local communities, all the while cloaked in the rhetoric of rights recognition. In important respects the current international human rights framework sustains the inequitable power relations even while aspiring to what Baxi refers to as the 'contemporary', 'inclusive', human rights paradigm. (7) There are simply too few mechanisms for the enforcement and fulfilment of socio-economic rights by disempowered citizens. The result is cynicism about the ability of human rights to curb violations, let alone to promote parity in an increasingly unequal world.

   As we will see, activists in South Africa have generated a more progressive articulation of human rights in the context of conflict with, as Baxi puts it, 'concentrations of economic, social, and political formations' (8). Facilitated by a Constitution with redistributive potential, the progressive articulation of human rights allows us to bring 'to full view the issues of inequity, structural exploitation, impoverishment and unequivocal duties of reasonable help to those who suffer' (9), as well as offering some hope of redress. Indeed, the South African Constitution compels the kind of interpretation of rights that Baxi ascribes to 'justice'; as necessitating an analysis of power. The transformative nature of the Constitution, as well as its unequivocal focus on equality, is evident in the founding principle quoted at the outset, and also in the equality clauses, which explicitly sanction positive discrimination in the interests of equity and justice on an individual or collective basis:

   'Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken' (10).

   As it relates to water, this justice-based human rights schema goes beyond the constitutional guarantee of access to sufficient water (which, along with all other socio-economic rights, is explicitly justiciable (11)), to encompass a range of legislation, regulations and policy designed to protect peoples' procedural and substantive right to water (12). Yet, despite this progressive framework, and in the face of numerous water-related violations, until the launching of a water rights case in July 2006 (that we discuss below), there had been no constitutional water challenges in South Africa. Why is this so?

   There are at least two reasons why there have been so few socio-economic rights cases generally (13) before the Constitutional Court. First, the Court has failed to advance a pro-poor direct access practice, such as the Indian Supreme Court has done, despite formal rules and a Constitutional provision allowing for direct access (14). The South African Court's record over the past ten years, in which it has only allowed direct access in a handful of cases, 'reveals a practice of restricting rather than expanding the conditions of direct access ... this has been to the detriment of the Court's ability to act as an institutional voice for the poor as, increasingly, only empowered individuals and groups have the resources to bring litigation through the judicial system to the Constitutional Court' (15).

   Second, the overly tentative and deferential way in which the Constitutional Court has interpreted socio-economic rights in its first decade has further alienated potential claimants. Instead of robustly clarifying the scope of socio-economic rights and measuring government performance against the objective core content of rights to see if there have been violations, the Constitutional Court has tested the positive obligations through inquiring into the reasonableness of government programmes in the context of the states' 'available resources' (16). This has meant that, although the Court decided in favour of the applicants in four of the five socio-economic rights cases to date (17), 'none of the judgements provided direct, substantive relief to the applicants, an outcome that gives little incentive to poor litigants to seek relief through constitutional litigation' (18).

   As useless as water-rights talk might appear in the wake of very tentative Constitutional Court jurisprudence, South Africa's constitutional framework does provide us with the tools to examine whether the commercialisation of water, (19) whether by private companies or corporatised municipal utilities, is trumping human rights obligations and undermining the promise of equality, and also to consider whether the Court can potentially redress such violations.

2. Water ideologies

   To address these issues properly requires some ideological context. (20) There have emerged three main discourses associated with water in South Africa and across the world. Above, we have briefly reviewed the socio-economic rights discourse, and we will later elaborate on the obstacles to the realisation of socio-economic rights in a hostile economic and political context.

   In contrast, the still-predominant discourse, 'neoliberalism', has an important advocate in The Economist magazine, whose July 2003 survey on water declares this dilemma: 'Throughout history, and especially over the past century, it [water] has been ill-governed and, above all, collossally underpriced.' Identifying this problem, naturally begets this solution: 'The best way to deal with water is to price it more sensibly,' for 'although water is special, both its provision and its use will respond to market signals.' As for the problem of delivering water to poor people, 'The best way of solving it is to treat water pretty much as a business like any other' (21).

   The third discourse, in between, is the often pleasing philosophy termed 'sustainable development' (or more technically, 'ecological modernisation'). It is...