I have been asked by a civil society advocacy organisation to provide an opinion with respect to the constitutionality of the new policy to install pre-paid water meters for residents of Bulawayo and possibly other cities.
I am advised that water authorities have decided to implement a policy where they will install pre-paid water meters so that essentially, residents will only be able to use and consume water by paying up-front on a “pay-as-you-use” system.
This represents a fundamental change from the existing system where users pay for water after usage. There are concerns that the implementation of this new policy would have a fundamental impact on the livelihood and quality of life of residents.
Under the pre-paid system, users would have to pay up-front or risk losing access to water which is a basic necessity for domestic use.
Under the old system, I understand that while the service could be stopped, this was only after use and even then, users had some leeway to pay what they could afford, while still accessing this basic commodity.
Thus, they could fall into arrears, but still be able to receive water supplies if they were able to pay a minimum amount towards the liquidation of their debt.
Under the pre-paid system, there is virtually no such leeway and failure to pay up-front means no access to the basic and essential commodity. The new method fortifies the commercialisation of water.
The pre-paid water system follows a similar policy implemented in the last few years for electricity supplies. The old system was replaced by a pre-paid system so that users could only access electricity when they had paid for it in advance.
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If not then they got no electricity supplies. This is the same system that the water authorities now want to apply to water supplies.
In essence, this system repackages a public good into a commodity that is traded at the marketplace just like any other good. It is designed to extract payment from consumers and to deny them use of the public good if they cannot pay.
Given the nature of water as a basic and essential commodity, which should be accessed by all, regardless of their social status or income, this policy imposes harsh market values on a commodity that should be treated differently.
There is no sense of social justice values at all in the proposed system which sacrifices human lives at the altar of the marketplace.
The existing system recognises that water is a public utility that should be accessed by all, regardless of their economic circumstances.
Access to water as a basic and essential commodity is given primacy over its commercial value and efficiency and profit margins for suppliers.
Although water is already traded to users, the existing methods are more humane, have less barriers and restrictions of access, especially to the poor and most vulnerable.
This is the crux of the complaint posed by residents – that the new pre-paid water system is too restrictive and discriminates against the poor and vulnerable who do not always have the capacity to pay in advance for an essential commodity without which human beings cannot live.
Water authorities might presumably argue that water has never been for free and that what has merely changed is the method and not the principle that water is paid for.
They will argue that the method is more efficient for revenue collection and that it will ensure less waste of water since users will now be more careful about water usage. They might even argue that this is a policy issue over which the courts must not interfere.
These arguments are not without sense, but the matter raises constitutional issues with respect to the fundamental right to water, which is provided for in the new Constitution and it is, therefore, important to consider it from that perspective.
I am aware that courts have a general reluctance to interfere in so-called policy matters, which fall in the domain of the executive.
However, this is not an immutable rule and it is my view that where a policy poses a risk to fundamental rights guaranteed by the Constitution, courts ought to be more vigilant.
It is my view that the supply of water must be distinguished from the supply of electricity, because water is a fundamental right provided for in Section 77 of the Constitution:
“Every person has the right to, safe, clean and potable water and the State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of this right.”
For this reason, the pre-paid electricity system cannot be equated to the pre-paid water system. One affects a fundamental right and the other does not.
In considering the policy and determining whether or not it is constitutional, one must therefore, be careful to note that one affects a constitutionally protected fundamental right while the other does not have the same direct effect.
In this regard, the pre-paid water policy must be adjudged in accordance with the criteria that water is a constitutionally protected right.
It is true that the right to water is not an absolute right, but one that is qualified by the notion that the State is “required to achieve a progressive realisation of this right” and this “within the limits of the resources available to it”.
Nevertheless, it is important to note that the State has a mandatory obligation to “take reasonable legislative and other measures” to ensure the protection of this right.
This places a positive obligation on the State, which means the State must demonstrate that it has enough safeguards in this pre-paid water policy, to ensure that poor residents are not prejudiced and cut off from water supplies.
It is arguable that the extent of the pre-paid water policy has an exclusionary effect upon many poor residents from access to water supplies, the State may be detracting from its constitutional obligation “to ensure the progressive realisation” of the right to water as provided for in section 77.
As with all rights, the right to water must be read with the main qualification in section 86 which is the general limitation clause which applies to all fundamental rights.
It states that: “The fundamental rights and freedoms set out in this chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors.”
This means to the extent that the pre-paid water policy limits the fundamental right to water, it must satisfy the constitutional requirement to be, “fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors”.
There is cause to argue that the policy is unduly restrictive and discriminatory against the poor and impecunious, that restricting people’s access to water offends against their dignity and the right to equality as human beings.
Water is a basic human need, not a luxury or an accessory like electricity, for which there are alternatives. Restricting access to water in this manner is an affront against human dignity, a right that is protected under the Constitution.
The general limitation clause recognises in section 86 (2) (b) and (e) that the purpose of the limitation must be considered and whether “it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest”.
It is important to judge the “relationship between the limitation and its purpose, in particular whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose” and finally, “whether there are any less restrictive means of achieving the purpose of the limitation”.
The argument here is that while the purpose of the limitation may be acknowledged, still, however, the pre-paid water policy imposes greater restrictions on the right to water than are necessary to achieve the purpose and that the existing system is a good enough method of achieving the same limitation if it is properly and compassionately enforced.
The argument here is that the pre-paid water system which does not allow room for discretion and for compassion where it is warranted and can therefore, impose an excessive burden on poor people.
