Kenya’s Progressive Journey Towards Human Rights-Based Water, Sanitation, Hygiene and Environmental Governance; Balancing the Scales of Human Rights
By Chelsea Agbasiere
In East Africa, Kenya is thoughtfully making steady reforms by recognizing fundamental human rights that once were not considered essential. Its strategic commitment to the Human Rights to Water and Sanitation (HRWS) and the Human Right to a Healthy Environment (HRHE) reflects an inclusive, rights-based governance towards environmental integrity and access to safe water as foundational to sustainable development.
A thorough analysis of Kenya’s huge strides in these thematic areas can be understood through their robust constitutional, legal and policy frameworks and by affirming their status as a monist state where the general rules of international law, treaties and conventions become part of Kenya laws once ratified (see Article 2(5) and (6) of Kenya’s Constitution 2010).
Human Rights to Water and Sanitation (HRWS)
Recent mapping of Kenya’s HRWS landscape reveals increased access to safe drinking water and sanitation compared to pre-2000 levels. This is applaudable and could be attributed to Kenya’s robust foundations as seen in the 2010 constitutional reforms that enshrine the right to clean and safe drinking water in adequate quantities (see Article 43) (1) (d)) and the right to reasonable standards of sanitation (see Article 43 (1) (b)).
The Water Act of 2016 emerged as a transformative legal instrument mandating sustainable, universal and affordable access to safe and clean water for all Kenyans. The Act established a comprehensive framework for regulation, development of water resources services and management, and decentralized water governance by devolution of roles between national and county governments, amongst other actions.
Another pivotal stride is the National Water Master Plan 2030 which provides a strategic blueprint for sustainable water resource management. It provides guidance for investment, climate resilience, domestic water supply, agriculture, sanitation, ecosystem health and institutional strengthening across Kenya’s 6 main water catchment areas. Some judicial precedents such as Okiya Omtatah Okoiti & Ors V. Nairobi City County making reference to HRWS pursuant to Kenyan Constitution, CEDAW (1979), ICESCR 1966, among others also help guide and implement these rights.
Human Rights to Healthy Environment (HRHE)
Kenya’s approach to the HRHE demonstrates a shift from mere policy aspiration to a constitutional imperative. Article 42 of the Constitution asserts that the HRHE is for the benefit of present and future generations, and Article 10 (2) (d) entrenches sustainable development as one of the national values and principles of governance. Article 60 mandates sustainable, sound conservation and protection of ecologically sensitive areas. These mechanisms showcase a transformative approach to environmental integrity and governance.
Article 69 of the Constitution articulates Kenya’s obligations in respect to the environment, requiring the State to ensure sustainable utilization, management and conservation of the environment, while guaranteeing equitable benefit sharing. The implementation measures include planting trees on up to 10% of the land area, eliminating environmentally harmful activities, establishing systems of environmental impact assessment, audit and monitoring systems. The Article mandates protection of indigenous knowledge of biodiversity and genetic resources, fostering public participation for environmental governance and reinforcing that ecological integrity is a shared responsibility.
The strength of human rights provisions lies in their enforceability. Article 70 of the Constitution covers this, authorising Kenyans to seek judicial redress should the rights to HRHE (Art. 42) be violated or even threatened. The courts are authorised to make orders, give directions or order compensation as it considers appropriate without requiring proof of personal injury eschewing barriers to environmental justice. In view of this, Kenya has further showcasedthe HRHE through frameworks such as the Environmental Management and Coordination Act 2022 and key judicial precedents aligned with international law. See KM & 9 Ors V. AG and 7 Ors applying the duty to guarantee HRHE in ACHPR, ICESCR. See also the recent EPZA & 10 Others v NEMA & 3 Others [2024] KESC 75 KLR.
Conclusion
Kenya’s approach to HRWS and HRHE governance demonstrates a calculated effort in establishing frameworks to foster the realization of these rights and other pertinent ones. The analysis above examines Kenya’s valuable insights in translating normative aspirations towards binding, implementable and enforceable frameworks. The judiciary has also demonstrated readiness to interpret the law in line with extant laws while also being responsive to emerging issues.
However, implementation gaps persist, particularly with access to water supply in rural areas and urban informal settlements, backed by intermittent supply and lack of structured sanitation channels. Reports around HRHE showcase the need for more resource allocation, institutional capacity strengthening, enhanced sensitization towards public participation, and coordinated implementation between county and national governments.
Kenya’s commitment to the HRWS and HRHE offers a valuable model for other nations to emulate. With sustained accountability, stronger political will, adequate funding and enhanced community engagement, Kenya can transform the complementarity between HRWS and HRHE into a powerful framework towards equity and sustainable development.
