Title: Water is a Right, Not a Privilege—Time for the State to Deliver on Its Constitutional Duty

In the heart of Nairobi’s bustling neighborhoods and in the quiet alleys of informal settlements, a silent struggle unfolds daily—the struggle for clean, safe, and sufficient water. For many Kenyans, especially in slums and low-income households, access to water is not just inconvenient; it is perilously uncertain. Yet this basic resource is not merely a utility. It is a constitutional human right, and it’s time the State stopped treating it otherwise.

Article 43(1)(d) of the Constitution of Kenya enshrines the right of every person “to clean and safe water in adequate quantities.” This is not a suggestion—it is a legally binding promise, a social contract enshrined in our supreme law. Yet decades after this provision came into force, the poorest among us still buy water by the jerrican, often of questionable quality, at inflated prices, or worse—go without it entirely.

This contradiction between law and lived reality was laid bare in the Satrose Ayuma & 11 Others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others (the “Muthurwa Case”). In this case, residents of Muthurwa Estate challenged the disconnection of their water supply, arguing that it violated their right to water. The Court, while acknowledging the constitutional right to water and citing international law, regrettably stopped short of enforcing that right in practice—citing arrears and the commercial logic of the Water Act 2002.

While the judgment was constrained by the legal framework in place at the time, it also served as a call to action. The Court recommended legislative reform and urged the State to adopt a rights-based approach akin to South Africa’s—one that guarantees a minimum water supply to the most vulnerable, regardless of their ability to pay.

Fortunately, the Water Act 2016 marked progress. It recognizes water as a public trust, prioritizes domestic use, and mandates the State to progressively realize this right. However, the spirit of the law remains betrayed by its implementation. Despite legal reforms, inequality in water access persists. Urban poor communities face periodic rationing, unsafe water, and commercial exploitation. Water tankers roam informal settlements as private monopolies of desperation.

But here lies the truth: No Kenyan should have to pay a premium to survive. Access to clean water is as essential as the air we breathe. It is the foundation of health, dignity, and equality. The State cannot abdicate its responsibility by hiding behind cost-recovery models or regulatory bureaucracies. It must act, and it must act now.

First, the government must implement a minimum lifeline water provision—a guaranteed quantity of water for domestic use that is free or heavily subsidized for low-income households. This is not charity. It is justice. Second, it must establish public water infrastructure in slums and informal settlements, ensuring water is not just theoretically available but physically and economically accessible. Third, any disconnections for non-payment should be reviewed within a human rights framework, ensuring that no household is denied this basic need due to poverty.

The law already gives us the tools. The Constitution, the Water Act 2016, and various international treaties all affirm the State’s obligation. What we lack is political will and moral clarity.

Clean water should not be a commodity auctioned off to the highest bidder. It is a public good. It is the lifeblood of our constitutional democracy. And as Kenyans, we must demand its realization—not as a favor, but as a right.

Mokua Manyara is an Advocate of the High Court of Kenya and a legal scholar specializing in climate change, environmental law, and socio-economic rights. He is passionate about governance, sustainability, and the use of law to advance social justice. Mokua currently serves as counsel in several public interest cases and is a former Chairperson of the Young Lawyers Committee of East Africa.