Realising the human right to water in Malawi through community participation
Mbano-Mweso, Ngcimezile Nia
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Lack of universal access to water is one of the fundamental failures of development in the 21st century. Women not only disproportionately bear the burden of lack of safe water but also have the least opportunity to take part in decisions regarding water services. This is a manifestation of the global water crisis caused by unequal relations of power, poverty and inequality related to gender, geographical location, class and race. Those who lack power find themselves at the peripheral of advantage from governance of water services. This thesis thus argues that the iconic slogan 'water is life' must be understood in both a biological and social sense. The social sense entails participatory living of citizens as equals in a community with others. The human right to water guarantees such living by recognising people as agents who must have power to affect outcomes through genuine participation. Participation is not a new thing especially in development approaches such as market-centred approaches of 1980s were different forms of participation in projects and programmes by states and development partners were advanced. These approaches resulted in participation as a tyranny, a mechanism of co-optation and legitimising the exercise of unjust power that perpetrates inequalities by sidelining the majority. The thesis identifies capability approach and the human right based approach to development as offering the best conception of participation away from concentration of power and pursuit of profit in the hands of a few elite. Capabilities and human rights treat people as human beings with the dignity and respect owed to every human being as a moral being and understand development as the development of certain human abilities or capabilities. This development of people and communities, as opposed to goods and services, is only possible if people participate effectively in the governance of development processes. Their emphasis is to go beyond ensuring the benefit of 'having' for instance water to also embrace the benefit of 'being' an equal citizen, sharing the benefits of 'participatory living' in a community of equals. The advantage of the human right based approach is that it has a strong foundation in law that compels states to act in a certain way to ensure legally recognised claims. The thesis establishes that there is a legally protected claim to water under the human right to water which is binding on states although the human right to water is unenumerated in the mainstream human rights treaties except for specified groups and situations. The claim to water under this human right is both in terms of a substantive normative standard and a procedural normative standard that guarantees beyond the human mode of 'having' into 'being' i.e. being a full member of society. These claims are legally binding and therefore enforceable against states. The human right to water requires states to adopt legislative and other non legislative measures that result in adequate and accessible water of good quality for all. States must take immediate, deliberate and concrete steps that include the formulation and implementation of national water policies and strategies in a transparent and nondiscriminatory manner to realise the human right to water. The formulation and implementation of national policies and strategies must ensure participation, human agency and dignity of all those affected by such decisions. The recognition of the human right to water in Malawi will provide an effective way of overcoming the lack of power and the 'tyranny of participation' which characterise water services in rural and peri-urban areas.
- Doctor Legum - LLD