WATER REPORT TO PARLIAMENTARY PORTFOLIO COMMITTEE ON LOCAL

GOVERNMENT, RURAL AND URBAN DEVELOPMENT

PREPARED BY

TIMOTHY CHITAMBURE & HILDABERTA RWAMBIWA

COMMUNITY WATER ALLIANCE

(NATIONAL COORDINATOR & NATIONAL CHAIRPERSON

RESPECTIVELY)

PHYSICAL ADDRESS

No. 35, Clyde Road, Eastlea, Harare

CONTACT EMAILS:

communitywateralliance@gmail.com

hildachra@gmail.com

timvenc@gmail.com

goodlifemudzingwa@gmail.com
INTRODUCTION

Community Water Alliance spearheaded the crafting of a petition on issues of water service
delivery. The petition was presented to Parliament first in December 2016 and re-submitted in
January 2017. Section 149(1) of Constitution of Zimbabwe Amendment (No. 20) Act 2013
provides for every citizen and permanent resident of Zimbabwe to petition Parliament to
consider any matter within its authority, including the enactment, amendment or repeal of
legislation. Section 194(f) of the Constitution of Zimbabwe Amendment 20 calls for public
administration that is accountable to Parliament and the people. In recognition of these
constitutional provisions giving power to Parliament of the Republic of Zimbabwe (and
Members of Parliament as representatives of the people on legislative matters) the petitioners
plea and prayer seeks to beseech parliament to (1) play oversight role on the 1913 Water
Regulations by-law (Statutory Instrument 164 of 1913) which has been used to effect arbitrary
water disconnections; (2) play a legislative role by synchronizing the substance and procedures
of Urban Councils Act, Rural District Councils Act, Zimbabwe National Water Authority Act and
the Water Act with provisions of Sections 77(a) and 44 of Constitution of Zimbabwe Amendment
(No. 20) Act 2013; (3) strengthen the Environmental Management Act to secure an intact
wetland ecosystem that guarantees sustainable provision of water (4) compel Ministry of
Environment, Water and Climate to review the 2013 National Water Policy written with technical
expertise from the World Bank and UNICEF-Zimbabwe; and (5) play oversight role and enforce
accountability of Harare Water through the availing of information on water treatment chemicals
as provided for in Section 62(1) which compels right of access to information held by any
institution or agency of government in so far as the information is required in the interests of
public accountability.

Community Water Alliance, all Civil Society Organizations and Residents Associations
(particularly those affiliated to Harare Metropolitan Residents Forum-HAMREF) highly
appreciate the opportunity granted by Parliament to discuss issues raised in our petition and we
are highly expectant that ON MATTERS ON WATER PROVISION ISSUES, the portfolio
committees of parliament will not fail us.
PART A

PRESERVING INTACT WETLAND ECOSYSTEM (WETLANDS ARE THE PRIMARY

SOURCE OF WATER)

Firstly we want to applaud you Members of Parliament for crafting a wonderful piece of
legislation, the Environmental Management Act. We are thrilled by the foresight you had in
crafting such a piece of legislation. The reasons why we are thrilled can be expressed by our
words below:

1. The legislature has enacted a powerful piece of legislation to protect the environment, the
Environmental Management Act which is specifically stated to prevail over any other
legislation in conflict with it.

2. The Act contains numerous provisions directing various authorities to take specific steps
to protect the environment. For example:

a) The Act requires that the Minister of the Environment prepares a National
Environmental Plan to promote and facilitate the co-ordination of strategies, plans
and activities relating to the environment and ensuring the protection and sustainable
management of Zimbabwes environment. The Plan must be reviewed at no more
than ten years intervals.

b) The Act requires that any institution or class of persons engaged in activities which
affect the environment (such as a developer) may be gazetted as a specified
authority by the Environmental Management Agency (EMA). These specified
authorities must prepare Environmental Management Plans. The plans must set
standards for environmental management and policies designed to give effect to the
plans.

c) The Act requires local authorities to develop Environmental Action Plans for their
municipalities.

All these plans must be designed in a manner that seeks to protect wetlands, in accordance with
the Act, the Constitution and International Conventions, particularly the Ramsar Convention.

3. The Act also:

a) Establishes a Council, some of the members of which must be environmental experts to
advise the Minister on policy.
b) Allows the Minister to give directions on policy to the EMA.
c) Requires that such policy and directions should be protective of and not detrimental to
wetlands.

4. The Act has specific provisions for the protection of wetlands and thus the countrys
water resources. For example:
 a) The Act allows the Minister to make orders for protection of environment which may
prohibit any excavation or the erection of any building at any place which the Minister
considers to be too near a public stream or a source of water and to make orders
prohibiting the destruction of any vegetation in a wetland.
b) The Act provides that no local authority may issue a building permit unless the
developer has first obtained an Environmental Impact Assessment Certificate
authorising the development.
c) The Minister may declare any wetland to be an ecologically sensitive area and may
impose limitations on development in or around such area.
d) Without express authorisation or a licence no person may:
i) reclaim or drain any wetland;
ii) disturb any wetland by drilling or tunnelling in a manner that has or is likely to
have an adverse impact on any wetland or adversely affect any animal or plant
life therein;
iii) cultivate on a wetland;
iv) destroy any natural vegetation of a wetland;
v) remove or alter the soil or surface of a wetland.

5. EMA is required to submit an annual report to the Minister on its activities related to the
environment and the Minister must lay this before Parliament.

But with all this we are witnessing depletion of primary water sources (wetlands) and the BIG
QUESTION IS WHY?

The bad news is in the implementation. Despite all these strong and useful provisions, we still
see development taking place on wetlands, crippling water supply, particularly in Harare, where
there is considerable pressure on wetlands due to the shortage of land for development. A typical
example is that of the Borrowdale Vlei where development is taking place, when it ought not to
be. What has gone wrong?

1. The Council to advise the Minister has not been established. The Council ought to have
advised the Minister on National and Local Authority Environmental Plans.

2. The National Environmental Plan, developed in 2005 but only gazetted in 2009 ought to
be revised and specifically address the issue of development and wetlands and set a clear
policy in this regard.

3. Local authorities ought to have been specified and required to develop environmental
management plans that protect wetlands and have a clear development policy. As part of
such plans, areas which constitute wetlands in Harare must be agreed between the Local
Authority and EMA to prevent misunderstandings in this regard.
 4. Local authorities ought to develop Local Area Plans for each area under their jurisdiction
which protect wetlands.

5. Local authorities are deliberately not complying with section 97(5) of the Act which
requires an EIA to be obtained BEFORE any license to develop is granted. Officials at
local authorities claim the right to issue the licenses, on the pretext that an attached
condition requiring an EIA to be obtained after issuance is sufficient. This is despite a
judgment from the Administrative Court that this is unlawful (in the High Court case
Monavale Residents vs Patel). Once a development permit is issued, local authorities take
rarely steps to ensure that the condition of the EIA is met.

6. The Act gives the Minister too much discretionary power, and in particular, the power to
override the recommendations of the EMA Board where an adverse EIA has been issued.
It is not good governance to allow a single individual the sole power to allow or deny
permission to build to a developer. Although the decision of the Minister may be
overridden by an appeal to the Administrative Court, by the time this happens, sometimes
the damage has been done. Furthermore, in order to pursue the appeal to Minister must
provide a record of the proceedings which gave rise to his or her decision. Ministers have
been slow to do this, and court applications have had to be made in the past to compel
this.

7. The EMA Board and Director-General of EMA are appointed and dismissed by the
Minister, and thus the decisions they make are sometimes perceived as beholden to the
Minister or Ministry.

8. The process for the issuance of EIAs, provided for in Regulations, needs to be revisited.
Those conducting EIAs are engaged by developers to make the report. An agency
contracted to do so is reluctant to issue an adverse report with regard to a development,
as, in so doing they know that they will not again be engaged by that, or other companies,
for an EIA.

9. The Minster must gazette wetlands as ecologically sensitive areas. Related Statutory
Instruments in this regard that were made have been set aside as invalid by the courts,
and have not been re-gazetted. The court order determining their invalidity has been
misinterpreted by developers. It is thus urgent that fresh statutory instruments be made by
the Minister and gazetted to provide clarity.
Reports from EMA must be submitted for Parliamentary scrutiny, and if this is done it will help
curb abuses for example, the public can be properly appraised as to why the EMA allowed
development on the Borrowdale Vlei, despite their own adverse report in regard to this. It is
unclear whether these reports are being tabled, and maybe Parliament can advise

WHY AN INTACT WETLAND ECOSYSTEM

 Wetlands are the primary source of raw water. Every stream starts from a wetland.
Wetlands are the underground water reservoirs. They re-charge streams.
Wetlands provide flood attenuation services. The floods horrors of 2016 on households
should not be forgotten.
Wetlands purify raw water free of charge. Remember City of Harare is using US$2,5
million to purify water. Sometimes the Local Authority is forced to mix raw water from
Chivero with raw water from Darwindale due to bad raw water quality.
Wetlands act as important carbon sinks. This is very important in the current environment
of changing climatic patterns.

PART B

1913 WATER REGULATIONS BY-LAW ( SI 164 of 1913)

We also applaud you Members of Parliament for the role you played in crafting Constitution of
Zimbabwe Amendment (No. 20) Act 2013. There are human rights principles which are
fundamental to the realization of the human right to water. The principles include non-
discrimination and equality; access to information; participation and accountability which are
provided for in Sections 56, 62, 194(e) and 194(f) respectively. We applaud you Members of
Parliament for the clause (Section 44) in our constitution that obliges the State and every person
to RESPECT, PROTECT and FULFILL the human right to water. We applaud you for
ensuring that administrative justice is a constitutional right. The reasons why we applaud you for
this good work is that:

1) Discrimination on grounds of gender and economic status has been prohibited. This
closes portraying inability to pay as unwillingness to pay.
2) Access to information makes it possible to pursue interests of public accountability and
ensure financial resources are channeled towards progressive realization of the human
right to water.
3) Participation in policy making is what makes us stand before Honorable Members of
Parliament.
4) Accountability is what makes the state able to within the limits of resources available to
it, ACHIEVE the progressive realization of the human right to water.

WHERE IS THE CHALLENGE POSED BY 1913 WATER REGULATIONS BY-LAW

The challenges lie in honoring two obligations:

The obligation to respect

The obligation to protect
Both enshrined in Section 44 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013.

As citizens we are aware that the obligation to fulfill the right to water requires financial
resources and that is why Section 77(a) the right to water is subjected to the limits of resources
available to the state and that is also why the state is encouraged to achieve PROGRESSIVE
REALIZATION of the right to water.

But Honorable Members of Parliament, RESPECTING AND PROTECTING THE RIGHT

TO WATER has no financial implications and these obligations are of immediate effect, they are
not subjected to the availability of financial resources.

The courts of our beloved country have already ruled on this matter. I draw your attention to two
cases:

Farai Mushoriwa vs City of Harare

Bothwell Property Company (Pvt)Ltd vs City of Harare (HC 4446/15)

What were rulings of our courts:

The City of Harare, all of its employees and assigns shall not disconnect water supplies,
without a court order expressly authorizing it to do so.

Legal frameworks must put adequate procedural safeguards in place prior to any disconnection.
It is crucial that users are able to seek remedies in cases where they feel that their human rights
to water or sanitation have been violated. Users must be given the chance to pay arrears; if they
are unable to pay, they must receive adequate subsidy mechanisms must be in place to ensure
affordability. South Africa, Water Services Act, Section 4:

(3) Procedures for the limitation or discontinuation of water services must

(a) be fair and equitable;
(b) provide for reasonable notice of intention to limit or discontinue water services and
for an opportunity to make representations, unless
(i) other consumers would be prejudiced:
(ii) there is an emergency situation; or
(iii) the consumer has interfered with a limited or discontinued service; []
PART C

SYNCHRONIZING SUBSTANCE AND PROCEDURES OF URBAN COUNCILS ACT,

RURAL DISTRICT COUNCILS ACT, WATER ACT AND ZINWA WITH PROVISIONS
OF SECTION 77(a) OF CONSTITUYION OF ZIMBABWE (No. 20) ACT 2013

Honorable Members of Parliament there is always a tendency by some Local Authorities to

portray us as people asking for free services. In a way that has watered down, what we are
correctly asking for. Community Water Alliance is not asking for free water and it is important to
lay out clearly that Water Alliance know the legal content of the right to water enshrined in
Section 77(a) of the Constitution of Zimbabwe.

We are demanding AAAQ meaning:

Availability of water- We are requiring that water facilities meet peoples needs now and
in the future; that water supply be sufficient and continuous for personal and domestic
uses which include drinking, personal sanitation, washing of clothes, food preparation,
and personal and household hygiene.
Physical and Economic Accessibility We are requiring that the design of water
facilities, the time and distance taken to collect water ( distance should not be more than
one kilometer and time should not be more than 30 minutes), affordability of potable
water (price paid to water delivery must not limit peoples capacity to buy other basic
goods and services, including food, housing, health and education, guaranteed by other
human rights) as well as physical security of users be in line with what Zimbabwe as a
nation willingly ascribed its signature. By this we mean General Comment 15 of the
International Covenant of Economic, Social and Cultural Rights.
Acceptability, dignity and privacy- meeting social and cultural standards.
Quality and safety no typhoid and cholera.

We are demanding that the promulgation of the right to water be anchored on principles of non-
discrimination and equality; public participation; accountability; access to information and
transparency as well as sustainability. All these are principles are already in our constitution
through Sections 56, 194, 14(1), 62, 68, and 73(1)(a).

OUR PLEA AND PRAYER IS THAT THIS FIND WAY IN ZINWA ACT, WATER ACT,
URBAN COUNCILS ACT AND RURAL DISTRICT COUNCILS ACT. WE ARE NOT
DEMANDING POTABLE WATER FREE OF CHARGE.

PART D

REVISITING OF THE 2013 NATIONAL WATER POLICY

The first point to note is that the policy was framed with the World Bank and Unicef as
"technical experts". The reason why it is important to mention this is for Parliament to appreciate
the ideological grounding of the policy.

1) The policy has created two institutions related to water provision at Local Authority level.
Urban and Rural Councils will be responsible for authorizing potable water supply. They will be
Water Service Authorities according to the Water Policy. They will have power to select who
provides potable water to citizens. Local Authorities will simply authorize another institution that
will be providing water which will be termed Water Service Provider. The Water Service
Provider will be responsible for providing water. The Water Service Provider can be a private
company, ZINWA or the Local Authority. In Harare there are discussions of creating Greater
Harare Water Utility. Some are saying it is a private company but others say it is a public entity
running its operations from commercial point of view. Community Water Alliance did a research
on this subject and produced a long research paper. Important point to note is that the Water
Policy has opened leeway for privatization. Is will be up to a Local Authority to remain with a
public water department or go private. Read paragraph 1.3.2 and paragraph 7.4.2 in the policy for
more information.
2) Establishment of National Water Supply Services Utility. The policy says that ZINWA
resources are dwindling because the commercial farms where its money came from are no longer
providing financial resources as they used to do. So to ensure that ZINWA has money for its
operations it has to provide potable water. ZINWA has therefore been tasked to create the
National Water Supply Services Utility responsible for potable water provision. Read paragraph
1.3.3 of the policy.
3) Water & Wastewater Services Regulatory Unit. Because of our fears of high prices associated
with water privatization, the policy propose the creation of a Regulatory Unit that will monitor
water and sanitation services supply; receive and assess charges of water; and oversee the
licensing of water service providers. Read paragraph 1.3.4 of the policy.
4) The policy proposes use of price mechanisms as a water demand management tool. In other
words if demand increase the price of water will increase to lower demand. Read paragraph 6.9
of the policy.
5) The policy proposes that water pricing should factor in all costs of production ( capital and
recurrent costs). Read paragraph 6.14 of the policy.
6) The policy mentions the issue of right to water but inserts a statement immediately that
withdraws that right. Read paragraph 6.7 of policy.
7) Policy mentions wetlands as underground water sources. This is a weak appreciation of
wetlands as primary water sources.
What is shocking is that the policy propose that all laws on water (EMA Act, ZINWA Act,
WATER Act, URBAN COUNCILS Act, RURAL DISTRICT COUNCILS Act etc) must be
reviewed, amended and synchronized to reflect what is in this policy.
PART E

ACCESS TO INFORMATION IN THE INTEREST OF ACCOUNTABILITY AND

PROMOTION OF RIGHT TO WATER

Harare Water should avail details of a break-down of charges of chemicals bought on monthly
basis, supporting receipts or invoices on payments, name of supplying company, water produced
from 2013 to date, payments made by residents and any other customer to date.

This information is important to tackle the debt figures that residents are claimed to owe. It is
very important to residents.

The accounting system of Harare Water has been reported several times in the place as a system
revolving around one man at Harare Water. The person is said to have avoided going on leave so
that he or she can continue to solely play around figures. Can Parliament oversee this issue by
compelling council to adhere to labor standards that ensure that the guy is on leave so that there
is open assessment of the finance procedures at Harare Water.