A/HRC/30/39/Add.2
governments. For instance, the devolution of State functions has not been followed up with
the necessary transfer of financial and human resources from the national to the county
governments. Despite the enormous challenges in access to sanitation throughout the
country, only three counties reported that they had adequate funding available to implement
planned sanitation activities for the fiscal year 2013/14. The national Government should
provide county governments with support to set up a service provision system. The county
governments should identify the areas where they need technical and financial support and
make specific requests to the national Government.
19.
The provisions on the competent regulatory authority for water and sanitation
services contained in the County Governments Act of 2012 contradict the Water Bill. The
County Governments Act can be interpreted as giving the competence of regulation to
county governments, whereas the Water Bill gives the Water Services Regulatory Authority
the regulatory powers and functions to determine and prescribe national standards for the
provision of water services, approve water and sewerage tariffs imposed by the county
water services providers and monitor compliance with standards by the water services
providers, among others. Once the Water Bill is in force, an explicit institutional set-up
with a clear designation of regulatory roles and responsibilities across the national, regional
and local levels will be indispensable and will provide the basis for accountable institutions.
Hence, even in a decentralized system, the principal human rights obligations stay with the
national Government, which has the obligation to oversee the overall realization of the
human rights to water and sanitation. The national Government should set minimum
mandatory standards for water and sanitation services, including on affordability, that
comply with human rights and that will be the basis for county governments to define their
own standards. Furthermore, an independent body such as the Water Services Regulatory
Board should play an essential role in monitoring the compliance of service providers with
the normative content of the human rights to water and sanitation. The roles of service
provision and regulation must therefore be clearly separated.
20.
At the policy level, Kenya also has an obligation to develop national standards and
indicators that will enable it to monitor all elements of the human rights to water and
sanitation. Such indicators should be designed not only to measure the outcome in terms of
the rate of access, but also to capture the progress and efforts made by the Government.
21.
In setting national and local standards, all levels of government are required to
consider existing service levels; local context, such as the availability of water resources;
and settlement types and densities. They may need to set interim standards, together with
relevant targets and indicators, before the best possible standard is developed. Such targets
must be time bound and tailored to meet the needs of particular population groups or
settlements, taking into account the barriers that must be overcome. Data disaggregated by
sex, rural or urban location, informal or formal settlement and advantaged or disadvantaged
group is essential in order to fully understand where and how discrimination occurs with
respect to access to water and sanitation. The indicators for the rights to water and
sanitation developed by the Office of the United Nations High Commissioner for Human
Rights (A/HRC/27/55, annex) could serve as a useful guide for Kenya in carrying out this
exercise.
22.
In order to start planning for the realization of the human rights to water and
sanitation in the new framework, the Special Rapporteur calls on Parliament to urgently
pass the Water Bill and clarify the competences of the national Government and county
governments, in particular regarding regulatory roles. The clarification of responsibilities is
indispensable for establishing which actors can be held accountable.
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