Is access to improved sanitation a human right?

The UN defines human rights as “rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status”.

These rights extend to the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education.

In South Africa, human rights also extend to the right of access to basic water supply and sanitation. This right was reinforced in the Grootboom Constitutional Court case judgment of October 4 2000, when section 26(1) of the Bill of Rights, which states that “everyone has the right to have access to adequate housing” was extended to include the provision of water and removal of sewage.

In addition, section 3 of the Water Services Act 108 of 1997, states that “everyone has a right of access to basic water supply and sanitation”. The Act defines basic sanitation as: “The prescribed minimum standard of services necessary for the safe, hygienic and adequate collection, removal, disposal or purification of human excreta, domestic wastewater and sewage from households, including informal households.”

However, the right to sanitation is not universally recognised, hence South Africa is one of the few nations where the right to sanitation is enshrined in the Constitution.

While the UN has, through the Millennial Developmental Goals and its predecessor, the Sustainable Developmental Goals, strove to drive the importance of sanitation universally, many of the indigent people in poor countries still lag behind their counterparts in developed countries in respect of adequate basic sanitation.

Despite being enshrined in the Constitution, access to improved sanitation in South Africa is not afforded to the entire citizenry, especially those who live in informal settlements.

This is evident from the incessant service delivery protests and the perennial deaths of school children in dilapidated ablution facilities. The poor state of sanitation facilities in peri-urban areas and informal settlements owes a lot to the legacy of the apartheid spatial planning that resulted in a huge infrastructure backlog when democracy was attained in 1994.

The situation has been exacerbated by corruption and maladministration that have plagued the democratic government.

Sadly, the recent economic woes have further diminished government’s capacity to address this problem. The country’s economic decline is also fuelling urban migration, which is driven by people searching for jobs and a better life.

The local government and municipalities at the coalface of the urban migration problem are perpetually playing catch up as informal settlements mushroom and expand at alarming rates.

The current municipal guidelines and processes are also not well-suited to handle the situation. Municipalities are caught up in the technical definition of what constitutes an informal settlement and the implications of formalising such settlements.

Therefore, a large chunk of the municipalities’ budgets are spent providing ad hoc services such as trucking in portable water and providing portable chemical toilets to informal settlements.

It is easy to criticise the municipalities for poor service delivery but given the state and the extent of the situation, I would see the glass as being half full instead. However, the level of sanitation services provided in these informal settlements fall far short of the constitutional mandate.

The dichotomous nature of sanitation services in South Africa, along with the economic line, are a proxy for the inequality that exist in the country. While those who are better off are serviced with flushing toilets connected to a city-wide sewer reticulation systems, the basic sanitation in many townships and rural areas is a hole in the ground, either in the form of a pit latrine or its equivalent. Due to the impromptu nature of informal settlements, permanent infrastructure is usually not provided, which compels inhabitants to make do with portable chemical toilets or resort to open defecation.

The operation and maintenance costs of these ad hoc solutions are high compared to the more permanent ones such as the pit latrines. However, pit latrines have low user acceptance and the high rate of rejection results in violent service delivery protests.

The right of the citizens to sanitation as stipulated in the Constitution thus rings hollow. While this constitutional right attempts to give equal access to sanitation, it does not stipulate the sanitation quality. Unless equal sanitation quality is defined in the Constitution, can we then say access to sanitation is a human right?

This is a question that needs to be addressed as the state of sanitation in informal settlements has become a political weapon and a rallying point for the socialist idealist and radical humanists.

This however does not tell the full story. If we agree with the status quo, that access to sanitation services is a human right, as with every right it must come with some responsibilities from its beneficiaries. This is similar to the right to freedom of speech, which strives to minimise and remove censorship, yet it does not warrant the right to slander or promote speech that infringe on other rights.

The right to adequate sanitation should come with a duty of care by its beneficiaries and to maintain and look after the facilities provided and a willingness to pay in full or augment the cost of services provided. Instead, the right to adequate sanitation has been interpreted to mean free sanitation with no obligation or responsibility borne by the beneficiaries.

The dichotomy in sanitation service provision is only mirrored by the willingness to pay or to take care of sanitation infrastructure.

The line or scope of responsibility for sanitation in suburban homes is clear and well defined. The homeowners are responsible for both capital and operational costs of the toilets within their homes while the municipalities are responsible for the infrastructure.

These arrangements are sacrosanct and well respected where the homeowners, more often than not, pay for the sanitation effluent discharged from the properties. In peri urban areas and informal settlements, the scope of responsibilities has been distorted in the pursuit of fulfilling a constitutional mandate.

This has robbed the homeowners of responsibility and the sanitation facilities are seen as the property and responsibility of the municipalities.

As such these facilities become derelict if not maintained by the municipalities. The maintenance of these facilities is oftentimes a drain on the resources of the municipalities and the lack of revenue from this service hampers the ability of the municipality to invest in new sanitation infrastructure or in the maintenance of existing ones.

Until the issue of who pays and maintains toilets and sanitation facilities in peri urban areas and informal settlement is addressed, the sanitation backlog will continue to grow. And the right of access to basic sanitation, as intended by the Constitution, will remain a pipe dream.

*Akintunde Akinsete is a project manager at the Water Research Commission

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