Mehta, Lyla

English

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Needs, rights and commodities 
Water is uniquely and fundamentally essential for all aspects of life, well-
being and productivity. It is also the lifeblood of ecosystems, essential
for many eco-hydrological functions. For poor people, access to clean
and affordable water is a prerequisite for achieving a minimum standard
of health and undertaking productive activities. However, it is estimated
that 1.1 billion people lack access to safe water, and almost 2.5 billion
people – 40 per cent of the world’s population – lack access to adequate
sanitation (Neto and Tropp 2000, p. 227). 
Recently, a growing number of analysts have argued eloquently that
water and sanitation are not just basic needs but fundamental human
rights based on the criteria established in international declarations that
protect the right to livelihood and well-being.1 Curiously enough, the
right to water was only implicitly endorsed in the 1948 Universal
Declaration of Human Rights (UNDHR), although it is explicitly
mentioned in the Convention of the Rights of the Child (1989).2 It was
only on 27 November 2002 that the United Nations Committee on
Economic, Social and Cultural Rights adopted the General Comment
on the right to water.3 The Committee stressed the state’s legal
responsibility in fulfilling the right and defined water as a social and
cultural good and not solely an economic commodity. There are several
merits in endorsing the human right to water. Clearly, the provision of
free and basic water, so essential for survival, could reduce the spread of
diseases, as well as improve health and well-being. It could enhance
poor households’ sense of dignity and independence, reduce the
drudgery of women and children who are responsible for water
235
Fourteen
Citizenship and the right to water:
Lessons from South Africa’s 
Free Basic Water policy
Lyla Mehta
Kabeer 14  30/11/04  11:37 am  Page 235
236 / Citizenship and policy
collection, and it could free time spent on water collection (one to four
hours a day) for other activities. 
Still, current orthodoxies in the water domain tend to focus on the
need to view water as an economic good, and there is a marked lack of
official endorsement of the human right to water.4 Since the Dublin
Statement of 1992,5 water has increasingly been seen as having
economic value in all its competing uses. Because water is scarce, goes
the logic, it must be used judiciously and its demand must be managed.
Accordingly, efficient resource management is equated with water
having a price. The underlying assumption in most discourses –
especially those originating in donor countries – is that there is a
congruity between viewing water as a right and viewing it as an
economic good. For example, the United Nations Children’s Fund
(UNICEF) and the World Water Council mention economic efficiency
arguments and rights-based arguments in the same breath (see Nigam
and Rasheed 1998, pp. 3–7). It is argued that even if something is a
right, there is no denying the need to pay for it, as with food.
South Africa is one of the few countries that explicitly recognizes the
right to water, and its Free Basic Water (FBW) policy goes against the
grain of conventional wisdom in the water sector, which stresses cost
recovery mechanisms. Since early 2000, the Department for Water
Affairs and Forestry (DWAF) has been investigating providing a basic
level of water free to all citizens. In February 2001, the government
announced that it was going to provide a basic supply of 6,000 litres of
safe water per month to all households free of charge (based on an
average household size of eight people). This ties in with DWAF’s
overall mission to redress the inequalities of the past, overcome the
backlog that it inherited in 1994 (around twelve to fourteen million
people without access to water) and create universal access to water
across the country. The Water Services Act 108 of 1997 states that a
basic level of water should be provided to those who cannot pay, and
the FBW policy emanates from the legal provisions of this Act.6 The
main source of funding for this initiative is the Equitable Share, a grant
from central government to local authorities. It amounts to about
3 billion rands a year, and is from national taxes for the provision of
basic services.
This chapter uses the case of water and South Africa’s FBW policy to
examine several challenges confronting contemporary understandings
of citizenship and rights. These include universalism versus particular-
ism, resource constraints in implementing rights, and questions of
enforceability and justiciability, particularly with respect to social and
economic rights. Over the past century, citizenship has increasingly
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Citizenship and the right to water in South Africa \ 237
been seen as encompassing social and economic rights, often known as
positive rights. Advocacy for positive rights, such as access to water,
food and shelter, marks a sharp change from the negative or liberal
understanding of rights that underpins notions of liberal democracy.
Neo-liberal traditions have viewed negative civil and political rights as
essential to understanding what, for example, constitutes citizenship.
But these traditions have been reluctant to award the same widespread
attention to social and economic rights because such rights have strong
links to social justice and imply moving away from the neo-liberal
notion that people’s socio-economic status is determined by the market
(Plant 1998, pp. 57–8). In fact, the distinction between negative and
positive rights is highly problematic because both involve state inter-
vention and commitments for their protection. In terms of the way
poor people experience rights, both are interrelated and indivisible. 
Still, the distinction between civil and political rights on the one
hand, and economic and social rights on the other, tends to persist. In
part, this has to do with historical reasons stemming from the Cold War
period, when, for ideological reasons, Western nations focused largely
on civil and political rights. Consequently, social and economic rights
continue to be viewed as ‘second generation’ rights. It is also telling that
the International Covenant on Economic, Social and Cultural Rights
(ICESCR) uses much weaker language than the International
Covenant on Civil and Political Rights (ICCPR). It calls on states to
take measures towards the progressive achievement of social and
economic rights. This could suggest that there is a hierarchy in the
realization of rights; that is, some are realized more gradually than others,
thus weakening the imperative to see some as rights. It also has fewer
signatories than the ICCPR, and the USA has not endorsed this
covenant. 
The South African case illustrates these contradictions nicely. Despite
being the only country in the world that explicitly acknowledges the
constitutional right to water, the massive policy and institutional
changes needed, in parallel with strong trends towards cost recovery in
the water sector, have made this policy difficult to realize. This under-
scores the need to look at how rights go hand in hand with political
choices around responsibilities and resources. This chapter argues that
even though implementing universal rights standards has been rather
contradictory in the water domain, there is still value in institutional-
izing access to water as a human right and viewing the right to water as
an entitlement of both national and global citizenship. The right to
water in principle provides justiciable components to local claims and
struggles around water. Finally, universal rights language can be used as
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Citizenship And The Right To Water: Lessons From South Africa'S Free Basic Water Policy

https://opendocs.ids.ac.uk/opendocs/bitstream/20.500.12413/12463/1/mehta_2005_citizenship.pdf

Citizenship And The Right To Water: Lessons From South Africa'S Free Basic Water Policy

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