Tuesday, September 21, 2021
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Legal Perspectives: Water Rights in face of Covid-19

With Fidelicy Nyamukondiwa
Harare City Council and
the government were recently dragged to court by residents for failing to
provide safe, clean and adequate water during the COVID-19 induced lockdown. Hwange
residents also hauled Hwange Colliery
Company Limited
(HCCL), Zimbabwe
National Water Authority
(ZINWA) and the government to court over water
shortages during the lockdown. Masvingo
City Council
(MCC) has not been spared as Masvingo United Ratepayers and Residents Alliance (MURRA) has filed
an ‘urgent chamber application’ to compel the local authority and national government
to provide adequate water during the lockdown.

Local
authorities’ obligations
Water is a fundamental human right. Section 77 of the
Constitution provides that every person has the right to
safe, clean and potable water. The
section also mandates the government to take measures to ensure residents have
adequate clean water. T
he environment minister delegates the responsibility to provide
water to local authorities like MCC.
In last week’s article
titled “The right to health amid
COVID-19”
, the concept that the state has an obligation to ensure human
rights are progressively realised ‘within
the limits of available resources
’ was explained. To guarantee efficiency, the
finance and environment ministries are mandated to ensure local authorities are
adequately resourced and financed.
City councils do not
wholly rely on government funding. In accordance with subsection 2 of section
276 of
the Constitution, local authorities have “power to levy rates and taxes and
generally to raise sufficient revenue
for them to carry out
their objects and responsibilities. To this end, most local authorities
including MCC recently hiked rates.
Countrywide, residents have raised the concern that, despite ‘exorbitantly’
hiking rates, local authorities have been failing to fulfil their obligations.  In the midst of the lockdown, residents have
been congregating at boreholes and other water points. Whether it is due to ignorance,
negligence or desperation,
most Zimbabweans have not been observing the social distancing
rule to help curb the spread of the deadly coronavirus
.

Responsibility to
pay rates.
Some residents and ratepayers have the misconception that
local authorities are adequately resourced to constantly provide adequate clean
water. This misconception was recently fueled by the fact that local
authorities hiked rates. The fact that local authorities like MCC levy rates does
not however mean that such rates and taxes are being fully paid.
On July 16, 2015 TellZim News published a Top 15 list of debtors
who owed MCC. Topping the list were key government departments. As at May 31, 2016,
Masvingo residents and ratepayers owed MCC a staggering U$36 million in
outstanding debts.  A major blow to MCC
and other local authorities was Statutory Instrument 33 of 2019 which saw United
States dollar debts being converted into Zimbabwean dollar debts.
In a statement, Mayor Cllr Maboke highlighted that MCC was
unable to effectively deliver service as a result of non-payment of bills by
residents and ratepayers As at October 2019, MCC was owed a total amount of
ZWL$50 million. Of the total amount, government departments owed about ZWL$27
million. The city council then took a move to recover the outstanding debts
through its debt collector,
Makausi and
Saratoga Legal Practitioners
. MURRA, through its spokesperson Godfrey Mutimba went on to
plead with MCC to “allow the residents some time to pay up their dues in
installments.”

What
is an Urgent Chamber Application?
Vigilantibus non
dormientibus jura subveniunt
is a Latin maxim which means the law helps the vigilant and not
the sluggard. This legal idiom means that the law protects those who don’t
sleep on their rights. Citizens must be encouraged to timeously approach the
courts whenever they feel their rights are being infringed.
Litigants approaching a court with an ‘urgent
chamber application’
must be able to convince the court that that the application
is indeed urgent. Harare residents were successful in doing so and an order to
compel Harare City Council to supply adequate water during the lockdown was
granted. Hwange residents failed.
Their application was dismissed after Justice Kabasa ruled that the ‘urgent
chamber application’
was not urgent. The court found that the residents
should have timeously sued. In other words, the court found that Hwange residents
have been sleeping on their rights.
Will Masvingo residents be successful? Justice Wamambo is yet
to decide.
Conclusion
Without safe,
clean and adequate potable water, the risk of contracting and spreading the killer
coronavirus disease is horrendously high. Local authorities are obligated to
ensure realisation of the right to water. The government ought to capacitate city
councils by providing financial and other resources. Residents and ratepayers
are obligated to timeously pay rates and taxes to capacitate local authorities.
Some residents and ratepayers hold the view that MCC has been
failing to prioritize its available resources. Whilst this may, to some extent
be true, I personally applaud the MCC for trying. More practical efforts are
needed because there are some parts of the city where taps often run dry for
long periods. Some new residential areas within the city do not even have taps.
MCC water may be inadequate for all but it is clean and safe. Masvingo is one
of the cities where you can safely drink tap water without boiling or
sanitizing it.
Fiat Justitia Ruat Caelum!
Fidelicy
Nyamukondiwa is a legal columnist who writes here in his personal capacity.
Contactable on 0785827154
nhanyams@yahoo.com  https://twitter.com/FidelNyams

TellZimNewshttps://tellzim.com
TellZim News is the leading news organization in the Southern region. It provides candid, balanced and timely news from the communities. Keeping it real. Committed to tell Zimbabwe.

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