Grassroots responses to water poverty, and the limitations of a right to water in South Africa and Malawi

• Pages: 31-73
• Author: Cooper, N.J.
• Date: 15 August 2018
• Published date: 15 August 2018
• Citation: (2017) 23 SAJELP 31

31

GRASSROOTS RESPONSES TO

WATER POVERTY, AND THE LIMITATIONS

OF A RIGHT TO WATER IN

SOUTH AFRICA AND MALAWI

Nathan John Cooper*

Abstract

This article considers how effective socio-economic rights are in securing

sustainable access to sufficient water for people in two water-scarce countries

in the SADC region: South Africa and Malawi. In South Africa, despite a

groundbreaking constitutional right to water, challenges remain to achieving

sustainable access to sufficient water for many of the country’s most vulnerable

people. Water in South Africa has largely been re-cast as a commodity, exposed

to market rules, proving problematic for many and giving rise to a variety

of responses, including litigation. But in the seminal case of Mazibuko the

Constitutional Court failed to provide robust protection or to adequately

enunciate a substantive core to the right to water. Similarly, in Malawi, while

there is no explicit constitutional provision for water, a right to development

does exist. Fulfillment of this right clearly requires access to basic resources

including health care, food, and by implication, water. In international law,

South Africa and Malawi have ratified several treaties affirming the right to safe

drinking water and sanitation. Indeed the Malawian case of Chihana v Republic

established the Universal Declaration of Human Rights as part of domestic law.

Yet in both countries millions of people continue to live in water poverty (without

sustainable access to sufficient water). Such failure of ‘rights-talk’ has provided

impetus for the formation of ‘commons’ strategies for water allocation. Indeed

‘commoning’ is beginning to represent not only an emerging conceptual strand

in peri-urban resource allocation, but also a potentially dynamic, contemporary,

eco-sensitive, socio-cultural phenomenon, striving towards innovative,

interactive and inclusive forms of planning and social engagement. Against the

backdrop of unequal water access, commoning offers glimpses of a subaltern

paradigm replete with empowering and enfranchising potential.

Keywords: Socio-economic rights, water poverty, sustainable access,

International Law

* Associate Professor, Te-Piringa Faculty of Law, University of Waikato,

New Zealand. Email nathan.cooper@waikato.ac.nz. I wish to thank participants

at the Regional African Law and Human Rights Symposium (RALHUS) in

November 2015 for their helpful comments on a presentation of an earlier

version of this article. All views and errors remain my own.

(2017) 23 SAJELP 31

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SOUTH AFRICAN JOURNAL OF ENVIRONMENTAL LAW AND POLICY

1. INTRODUCTION

Armed with transformative constitutions containing justiciable

socio-economic rights, which include (at least implicit) rights of

access to water, South Africa1 and Malawi,2 in their respective

post-apartheid, and post-authoritarian states, would seem well

placed to address water poverty through juridical means.3 Both

countries are members of the Southern African Development

Community (SADC).4 One of the main objectives of SADC is

to promote poverty alleviation and eradication through regional

integration,5 which includes promoting common political values

and institutions.6 Justiciable socio-economic rights provide a

good example of such shared values, and so constitute a driver for

integration. In international law, South Africa and Malawi have

ratified several treaties affirming the right to safe drinking water

and sanitation.7 But the task of achieving sustainable access to

1 Section 27 (1)(b) Constitution of the Republic of South Africa, 1996.

2 See Chapter IV of the Republic of Malawi (Constitution) Act No. 20 of

1994.

3 For more information about the challenges of water scarcity facing both

countries see ‘Charity water’: .org/projects/countries/

malawi/ ?utm_medium=ppc&utm_source=adwords&utm_campaign=prob-

lemgeo&utm_content=watermalawi4& gclid=CjwKEAjw5vu8BRC8rIGN-

rqbPuSESJADG8RV0CWiIBkn9aJDdQOxKxDyB2RbyJzrdbA1y3VGVkH-

iqwhoCZ9nw_wcB> (Last accessed 01 August 2016); ‘The Water Project’:

(Last

accessed 01 August 2016).

4 Consolidated Text of the Treaty of the Southern African Development

Community: ext_

of_the_SADC_Treaty_-_scanned_21_October_2015.pdf> (Last accessed

6 February 2017).

5 Ibid at article 5(1)(a).

6 Ibid at article 5(1)(b).

7 These treaties include the International Covenant on Economic, Social

and Cultural Rights (ICESCR); the Convention on the Elimination of all forms

of Discrimination Against Women (CEDAW); and the Convention on the Rights

of the Child (CRC). Each of these is discussed in detail below. At a regional

level the following agreements are also relevant to acknowledging a right to

water: African Charter on Human and People’s Rights (ACHPR); See also the

Southern African Development Community (SADC) Charter of Fundamental

Social Rights, and Protocol on Health, both of which give rise to social rights

obligations, fulfilment of which implicitly requires access to sufficient water:

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WATER POVERTY IN SA AND MALAWI

sufficient water for everyone in both of these countries remains

considerable and complex.

In South Africa water resource regulation during apartheid

formalized and entrenched a profoundly unequal system, where

white South Africans enjoyed an abundance of relatively cheap

water, while water supply for black South Africans was impeded

by poor infrastructure and lack of essential investment.8 Indeed

access to sufficient water became an avatar of the inequality

and illegitimacy at the heart of the apartheid state, and perhaps

unsurprisingly, in the aftermath of a transition to democratic rule,

a specific right of access to water (alongside other essentials) was

made explicit in the Constitution of the Republic of South Africa,

1996: ‘Everyone has the right to have access to sufficient food and

water’.9 However, access to sufficient water is still not a reality for

many, and multiple challenges, old and new, continue to impede

the fulfillment of this most basic human need.10

Malawi’s history since British colonial rule, then under the

one-party authoritarian government of Hastings Banda, has left

a legacy of ‘widespread, deep and severe’ poverty.11 Economic

marginalization, which perpetuates the conditions of poverty, is

particularly hinderous to the task of achieving access to water.12

According to the International Monetary Fund (IMF) Poverty

Strategy Paper for Malawi,13 the water sector faces challenges

including: degradation of water resources; limited access to

potable water; inadequate promotion of hygiene and sanitation;

inadequate water reservoirs; inadequate capacity of contractors

(last accessed 11 February 2016).

8 P Bond ‘Water rights, commons and advocacy narratives’ (2013) 29

South African Journal of Human Rights 125 at 128.

9 Section 27(1)(b) Constitution of the Republic of South Africa, 1996.

10 See discussion and statistics at points 7-10: v.za/

publications/P0318/P03182013.pdf> (last accessed 14 December 2015).

11 S Gloppen & FE Kanyongolo ‘Courts and the poor in Malawi: Economic

marginalization, vulnerability, and the law’ (2007) 5/12 International Journal

of Constitutional Law 258–293 at 261.

12 Ibid.

13 International Monetary Fund (IMF) Malawi Poverty Reduction Strategy

Paper 2012, available at .imf.org/external/pubs/ft/scr/2012/

cr12222.pdf> (last accessed 10 February 2016).

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