The Supreme Court has ruled that water disconnections by Local Authorities using the 1913 Water Regulations By-law (Statutory Instrument 164 of 1913) are above board. This follows a Supreme Court appeal made by the City of Harare against a High Court judgment in which Farai Mushoriwa challenged arbitrary water disconnections at his premises. Fear and questions have been raised on the implications of the ruling on the human right to water enshrined on Section 77a of the Constitution of Zimbabwe.
This short writing seeks to state Community Water Alliance position and what we believe to be the way forward.
Firstly there is need to clarify the legal arguments and foundation that underlie Farai Mushoriwa's legal challenge. Mushoriwa challenged substantive and procedural fairness of the water disconnection process by City of Harare. He challenged the provision in Section 8 of Statutory Instrument 164 of 1913. Farai Mushoriwa had a disputed bill and argued that City of Harare appeared like they intended to profit from own fraud or take advantage of own wrong on calculating amount due or base claim upon own inequity or acquire money by own crime. Section 8 of Statutory Instrument 164 of 1913 allow Local Authorities to discontinue water supplies to consumer without paying compensation, by giving 24 hours notice.
Mushoriwa claimed that the by-law is ultravires Sections 198 and 69(2)(e) of the third schedule of the Urban Councils Act. Mushoriwa had argued that these sections of the Urban Council Act have no provision allowing disconnections based on "the opinion of council on amount due". The amount due based on opinion of council is what Mushoriwa challenged. Mushoriwa based his legal challenge also on Section 68 of the constitution on administrative justice as well as provisions of the Administrative Justice Act.
Community Water Alliance saw this judgment coming because the basis of Farai Mushoriwa's legal argument in our opinion was not sustainable. The provision of giving 24 hours notice which is contained in SI 164 of 1913, in our view somehow addresses compliance with substantive and procedural justice and fairness contained in Section 68 of the Constitution of Zimbabwe and Section 3 of the Administrative Justice Act. The case of Bothwell Property Pvt Ltd v City of Harare & Another (HC 4446/15) aptly and succinctly capture this view. Judgment by Justice Chigumba on this issue in the above case correctly captures our view on the arbitrary water disconnections versus substantive and procedural fairness debate.
WE HOWEVER AGREE WITH FARAI MUSHORIWA THAT SECTION 8 OF STATUTORY INSTRUMENT 164 OF 1913 IS UNCONSTITUTIONAL. WE DIFFER ON THE BASIS OF UNCONSTITUTIONALITY OF THIS BY-LAW.
Our view on the legal basis of unconstitutionality of Section 8 of SI 164 of 1913 defines both our thinking on way forward and the future of litigation against arbitrary water disconnections.
WE BELIEVE THE LEGAL BASIS FOR THE UNCONSTITUTIONALITY OF SECTION 8 OF SI 164 OF 1913 SHOULD BE ON THE STATE OBLIGATIONS TO RESPECT AND PROTECT HUMAN RIGHTS WHICH IS CONTAINED IN SECTION 44 OF OUR CONSTITUTION. The obligations to respect and protect are of immediate effect and cannot be subjected to resource availability. Arbitrary water disconnections are retrogressive and not progressive. Moving forward litigation against arbitrary water disconnections should also, on top of relying on Section 44, base legal reasoning on Section 86(2) on limitations of rights and freedoms. Local Authorities have other less restrictive means of achieving revenue collection, for example issuing summons. Future legal challenges against arbitrary water disconnections need to take all these arguments into consideration.
Community Water Alliance welcome feedback and constructive criticism from legal practitioners, particularly on this position and thinking which is expected to shape our advocacy moving forward. Legal reasoning contrary to this is welcome and it helps shape our advocacy work.
Source: Community Water Alliance