On 1st July 2020, the African Commission on Human and Peoples’ Rights (ACHPR) published Guidelines on the Right to Water in Africa. These Guidelines are intended to support States to ensure that everyone, including vulnerable and marginalised communities, enjoy the right to water. This is particularly timely as the COVID-19 pandemic has highlighted the pressing need for universal access to quality water and sanitation services, and the importance of the role of the State in the delivery of public services.

The Guidelines echo key concepts from the Abidjan Principles on the right to education. In particular, similar to Abidjan Principles 65 and 66, the Guidelines require substantive and procedural conditions to be met before the State may delegate the provision of water services to a private actor (Guidelines 32.2, 32.3 and 32.4).

These conditions include demonstrating that the partnership with private sector would be the most effective way to realise the right to water and the decision does not amount to a retrogressive measure. The Guidelines also require States to demonstrate that this decision would not constitute or contribute to the marketisation or commercialisation of water; and that the agreement can be reversed. The Guidelines also call for an inclusive participatory assessment of the potential impacts of the introduction of a private provider, a plan of action to avoid all foreseeable negative impacts and a threshold to disqualify providers where there is a risk of human rights violation.

The Guidelines also emphasise that ‘private actors delegated from a public service obligation are subjected to more stringent obligations than other private actors’ (Guideline 32.5), and call for a clear, efficient regulatory framework before States delegate the provision of water services to private actors (Guideline 32.5). They further affirm that States remain accountable for any harm caused by a private actor, including where their activities lead to the commercialization of water (Guideline 32.8).

The Guidelines on the Right to Water in Africa were adopted during the 26th Extraordinary Session of the ACHPR held in July 2019 in Banjul, The Gambia, and were released on 1st July 2020. GI-ESCR had contributed to the reflection with a submission in 2018 to the ACHPR Working Group on Economic, Social and Cultural Rights on the Draft Guidelines. Many points of the submission were taken into account.

The connection and consistency between these guidelines and the Abidjan Principles on the right to education, which also address the issue of private sector involvement, is remarkable. The ACHPR Guidelines add to a growing number of normative texts that build a coherent set of standards for the delivery of public services and the regulation of private actors across different sectors, including education, health, and water and sanitation. They come ahead of a much-awaited report on privatisation of water by the UN Special Rapporteur on the rights to safe drinking water and sanitation, Leo Heller, that he will present in October 2020.

For more information contact Sylvain Aubry on sylvain@gi-escr.org and Ashina Mtsumi on ashina@gi-escr.org

Learn more about our work on private actors and public services: https://www.gi-escr.org/private-actors-public-services