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How to Fulfill the Right to Water as a Socioeconomic Right in Kenya



By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publication of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*

Water is now considered a human right issue and there is an increasing need to balance all of the competing commercial demands on water resources so that communities have enough for their needs. The State obligation to fulfil its human rights obligations includes the obligations to facilitate and promote the fulfilment of the right to water. The obligation to facilitate requires the State to take specific measures within its available resources to assist individuals and communities to enjoy the right to water. The obligation to promote requests the State to take targeted steps. To this end, the State can take the following measures towards the fulfillment of water as a socioeconomic right for the people of Kenya.

Public Participation and Consultation in Decision-Making

Principle No. 2 of the Dublin Statement on Water and Sustainable Development’ (1992) recommends that water development and management should be based on a participatory approach, involving users, planners and policy-makers at all levels. It goes on to state that ‘the participatory approach involves raising awareness of the importance of water among policymakers and the general public. It means that decisions are taken at the lowest appropriate level, with full public consultation and involvement of users in the planning and implementation of water projects.’ There is a need for the Government and other stakeholders to involve communities in decision-making processes relating to water management not only as a way of ensuring that the constitutional thresholds are met but also as a way of ensuring that the appreciate the challenges that face the sector and use the available water efficiently.

Addressing Poverty for Fulfilling the Right to Water

In a Resolution on the Right to Development adopted on 19 December 2016, the United Nations General Assembly expressed their concern that the majority of indigenous peoples in the world live in conditions of poverty, and recognized the critical need to address the negative impact of poverty and inequity on indigenous peoples by ensuring their full and effective inclusion in development and poverty eradication programmes. Considering that there is continued privatization and commercialization of provision of water services in the country, there is a need to address poverty levels in the country in order to ensure that people are economically empowered to afford safe, clean and adequate amounts of water for their own use.

Addressing Gender Inequality in Water Services

It has rightly been argued that since women have an increased need for water for hydration, sanitation and hygiene during menstruation, pregnancy, the postnatal period and while caring for sick family members or young children, when these basic needs are not met, women and girls are unable to participate equally in society. This is especially more pronounced in Kenya and Africa where gender roles in society are still greatly affected by cultural beliefs. As modernity and campaigns towards promotion of gender equality continue to address these cultural notions, there is a need for the government and water providers to ensure that women and girls have access to adequate and safe water for domestic and agricultural use for as long as they still bear the burden of being caregivers and nurturing families.

While the 2010 Constitution of Kenya acknowledges access to clean and safe water as a basic human right falling under social economic rights and assigns the responsibility for water supply and sanitation service provision to county governments, for a huge population of the Kenyan people, this remains a mirage. As things currently stand, water was commercialized as evidenced under the current water laws in Kenya and water has continually become expensive and women and girls’ access to the same is further hindered by their reduced purchasing power, especially in the urban informal settlements.

It is estimated that only about 20% of the population in Kenya’s urban informal settlements have access to safe drinking water. While in the major restructuring of Kenya’s urban water delivery system towards commercialization and privatization where private vendors are being regularized for better service delivery in terms of regulation of prices and quality of water, women and the urban poor continue to be disadvantaged. There is thus a need for continued empowerment of women and girls as a way of ensuring that they are economically, socially and politically empowered in order for them to have not only a say in water management decisions but also have the economic means to access the same.

Combating Climate Change for Safeguarding Water Resources

Considering that climate change poses a great threat to water sources and supply, there is a need for the stakeholders in water sector to work closely with other stakeholders in order to combat climate change through such means as sound management policies for water, using climate resilient technologies, among other means. Some authors have also argued that since water and sanitation services contribute to greenhouse gas emissions, choice of wastewater treatment technologies, improved pumping efficiency, use of renewable sources of energy, and within system generation of energy also offer potential for reducing emissions.

 Financing of Water Projects

Under the Water Act 2016, there is also established a water sector financing institution to be known as the Water Sector Trust Fund.58 The object of the Fund is to provide conditional and unconditional grants to counties, in addition to the Equalisation Fund and to assist in financing the development and management of water services in marginalized areas or any area which is considered by the Board of Trustees to be underserved including- community level initiatives for the sustainable management of water resources; development of water services in rural areas considered not to be commercially viable for provision of water services by licensees; development of water services in the under-served poor urban areas; and research activities in the area of water resources management and water services, sewerage and sanitation.59 This fund should be utilized towards ensuring that all persons get to enjoy the right to clean, safe and adequate amounts of water as a socio-economic right. The fund should be used to improve water supply for both urban and rural populations.

A Human Rights Approach to Water Services Provision

It has been argued that the human right to water implies that water supply must be accessible within, or in the immediate vicinity of, each household, educational institution, workplace and public place. The right to water is now seen as an implicit component of the right to an adequate standard of living and the right to health. In the case of Isaac Kipyego Cherop v State Ministry of Water & 142 others [2017] eKLR, the Court affirmed that the right to clean water is intertwined with the right to clean and healthy environment. The right to water and sanitation is now anchored in international human rights law and states, policymakers, international development partners and civil society groups are enjoined to work om making the right to drinking water and sanitation a reality.

While it is acknowledged that the fulfilment of the right to water as a socio-economic right is progressive, the Government should continually work with non-state actors, private investors, NGOs and other stakeholders to ensure that the same is fulfilled for Kenyan citizens and especially the most vulnerable and marginalized groups. The Government should continually work towards coming up with ways of ensuring that water is affordable for all. However, considering that water is a scarce commodity, there is also need for public education and creating awareness on the need to use water efficiently in order to minimize wastage of the same. Water is an integral part of the socio-economic rights and the Government cannot ably fulfill its obligations on Article 43 of the Constitution of Kenya without working towards fulfilling its obligations on provision of water for all citizens. Fulfilling the right to water as a prerequisite for realization of other socio-economic rights for the people of Kenya is indeed necessary and possible.

*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya): Muigua, K., Fulfilling the Right to Water as a Socioeconomic Right for the People of Kenya, /wp-content/ uploads/2020/11/Fulfilling-the-Right-to-Water-as-a-Socioeconomic-Right-for-the-People-of-Kenya-Kariuki-Muigua-Ph-D.pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021. 




Albuquerque, C., “Climate Change and the Human Rights to Water and Sanitation.” (2010)< english/issues/water/iexpert/docs/ClimateChange _HRtWS.pdf> (Accessed 11 December 2021).

CESR, ‘What Are Economic, Social and Cultural Rights?’ (3 December 2008), Available at: (Accessed 29 October 2020).

Centre on Housing Rights and Evictions and others (eds), Manual on the Right to Water and Sanitation: A Tool to Assist Policy Makers and Practitioners Develop Strategies for Implementing the Human Right to Water and Sanitation (Centre on Housing Rights and Evictions 2007).

Chepyegon, C. and Kamiya, D., ‘Challenges Faced by the Kenya Water Sector Management in Improving Water Supply Coverage’ (2018) 10 Journal of Water Resource and Protection 85; ‘Nairobi Water: What’s behind Severe Shortages?’ BBC News (2 November 2019) (accessed 14 December 2021).

Constitution of Kenya, Laws of Kenya, Government Printer, Nairobi, 2010.

Dawood Ahmed and Elliot Bulmer, ‘Social and Economic Rights,’ International IDEA Constitution-Building Primer 9, International Institute for Democracy and Electoral Assistance (International IDEA), Second edition, 2017, Available at: (Accessed 20 October, 2020).

Dos Santos, S. and others, ‘Urban Growth and Water Access in Sub-Saharan Africa: Progress, Challenges, and Emerging Research Directions’ (2017) 607–608 Science of The Total Environment 497.

Dublin Statement on Water and Sustainable Development’ (1992) 10 Waterlines 4, Available at: (Accessed on 11 December 2021).

General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant), Adopted at the Twenty-ninth Session of the Committee on Economic, Social and Cultural Rights, on 20 January 2003 (Contained in Document E/C.12/2002/11).

Howard, G., and others, ‘Climate Change and Water and Sanitation: Likely Impacts and Emerging Trends for Action’ (2016) 41 Annual Review of Environment and Resources 253.

Human Rights Watch, “‘There Is No Time Left.’” (2 Jan. 2019), Available at: 10/15/there-no-timeleft/climate-change-environmental-threats-and-human-rights-turkana; (Accessed 1 December 2021).

Kiefer, T., Winkler, I., and Cacciaguidi-Fahy, S., “Legal Resources for the Right to Water and Sanitation. International and National Standards.” International and National Standards – 2nd Edition (2008).

McGraw, G. S. “Defining and defending the right to water and its minimum core: legal construction and the role of national jurisprudence.” Loy. U. Chi. Int’l L. Rev. 8 (2010): 127.

Lancet Global Health, ‘Water and Sanitation in a Post-COVID World’ (2020) 8 The Lancet Global Health e1101.

Levin, T., M. Nierenköther, and N. Odenwälder. “The human right to water and sanitation: Translating theory into practice.” Eschenborn, Germany: Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH (2009).

Ling San Lau and others, ‘COVID-19 in Humanitarian Settings and Lessons Learned from Past Epidemics’ (2020) 26 Nature Medicine 647.

Muigua, Kariuki. “Streamlining Water Governance in Kenya for Sustainable Development.” (2017), Available at: (accessed 14 December 2021).

Navarra Center for International Development, ‘Water Provision in Kenya: Problems and Challenges in Managing Finite Resources,’ (accessed 14 December 2021).

Nicol, A., ‘The Pandemic Is Laying Bare a Global Water Crisis’ (Foreign Policy) accessed 28 October 2020;

Safe Drinking Water Foundation, ‘Human Rights,’ Available at: (accessed 28 October 2020).

Sarkar, A., ‘Informal Water Vendors and the Urban Poor: Evidence from a Nairobi Slum’ (2020) 45 Water International 443.

UN-Water, ‘Water’ (21 December 2015) (accessed 28 October 2020).

UN-Water, ‘UN World Water Development Report 2020 “Water and Climate Change”’ (UN-Water, 21 March 2020) accessed 28 October 2020.

United Nations, CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), Adopted at the Twenty-second Session of the Committee on Economic, Social and Cultural Rights, on 11 August 2000 (Contained in Document E/C.12/2000/4);

UN General Assembly, The Human Right to Water and Sanitation: Resolution / Adopted by the General Assembly, 3 August 2010, A/RES/64/292.

UN, ‘International Decade for Action “Water for Life” 2005-2015. Focus Areas: The Human Right to Water and Sanitation’ (accessed 21 October 2020).

UN General Assembly, Transforming our world: the 2030 Agenda for Sustainable Development, 21 October 2015, A/RES/70/1. 25.

Water Act, No. 43 of 2016, Laws of Kenya, Government Printer, Nairobi, 2016.

Water Project, ‘The Water Crisis: Poverty and Water Scarcity in Africa,’ Available at: (accessed 14 December 2021).

World Health Organization. Water, sanitation, hygiene, and waste management for the COVID-19 virus: interim guidance, 23 April 2020. No. WHO/2019-nCoV/IPC_WASH/2020.3. World Health Organization, 2020.

News & Analysis

Why is THE LAWYER AFRICA Listing Top Law Firms and Top Lawyers?




The Litigation Hall of Fame | Kenya in 2023 (The Most Distinguished 50 Litigation Lawyers in Kenya).

We live in the age of information overload where too much information (TMI) is increasingly making it difficult to find actionable legal data about a good law firm or lawyer. At the same time, legal services are increasingly going digital and finding your next lawyer is a now a matter of a few clicks. Many existing, new and potential clients are interested to know more about the lawyer handling or likely to handle their next case or transaction as every HR Manager seeks to know how their In-house Lawyer or next hire compares to peers.

The biggest dilemma especially for commercial consumers of legal services  is where to begin the journey in finding the law firm or the lawyer to meet their immediate legal need created by their new venture,  business, transaction or dispute. In-house counsel are also called upon to justify opting for one lawyer or law firm or over the other.  Hence, the rise in the popularity of international law directories rankings as an attempt to fill the yawning gap by listing a few dozen lawyers and law firms in esoteric categories that often don’t align with the legal needs of the domestic legal market.

But ranking two dozen elite lawyers or big law firms in a big jurisdiction like Kenya there are over 20,000 lawyers is merely a drop in the ocean. The result is the same candidates are listed year after year and an In-house Legal Team looking to infuse new blood in their external counsel panel is left very little discretion. At best, International legal ranking only succeed to tilt the scales in favour of few big firms and their lawyers and to aid the choice of International Legal buyers who are constrained for time in picking their External Counsel in jurisdictions where they cannot find referrals.

The questions that beg are: What about the other top law firms and lawyers who are equally good if not better but don’t have the time to fill the technical paperwork that comes with International Legal Directories rankings? What about Domestic Legal Buyers who simply want to justify why they prefer a lawyer or law firm not listed in the International Directory? Can increasing the number of listed lawyers or law firms from less 0.1% of the profession (as captured by International Law Directories) to at least 1% of the profession or higher for those specializing in the practice area help in enhancing access to justice in Africa? Can ranking law firms by number of fee earners help in the quest for a more accurate bird’s eye view of a country’s legal landscape?

At THE LAWYER AFRICA, we have set out to list Top Law Firms and Top Lawyers in the various practice areas in a way that democratizes law rankings and listings and brings this essential value add within reach of most lawyers and every law firms doing top legal work. We don’t promise to list all the top lawyers or law firms, but we commit to make sure every lawyer or law firm we list is at the top of the game in the listed practice area. We aim to help both little known and already known law firms and lawyers doing top legal work in their area of specialization get discovered by discerning clients and possibly get more opportunities to do great work.

THE LAWYER AFRICA is looking to list up to Top 200 Law Firms in every African Jurisdiction based on their reputation and number of fee earners headcount with a goal of listing at least Africa’s Top 1,000 Law Firms which are leaders in their respective countries. We also seek to list up to Top 1,000 Lawyers in every country in Africa in at least five main practice areas, namely, Litigation, Commercial Law, Property law, In-house and Private Sector or more.

THE LAWYER AFRICA categorizes law firms in large jurisdictions as Top 5, Top 10, Top 20, Top 50 and Top 100 (and allow tying where number of counsel is equal). The Top Lawyers are listed in three categories, namely, Hall of Fame (the Distinguished Top 50 or 75 Practitioners in a Practice Area), Top 100 (the Leading Top 100 Practitioners in a Practice Area) and Up-and-Coming (the promising Top 50 or 75 Practitioners in a Practice Area).  The placing of a listings depends on a number of key factors including the number of key matters or transactions handled, years in practice and experience, size of team working under a counsel, reputation and opinion of peers (where available) as established by THE LAWYER AFRICA.

THE LAWYER AFRICA prefers to list a counsel in only one listing, as far as possible. The Team tries (as far as possible) not to contact listed law firms or lawyers before the listing is finalized in the first. However, a listed law firm or lawyer may be contacted at the pre-launch stage of a list for purposes of selling merchandise relating to the launch but such engagement will not affect the listing. In case of future listings, it is expected that interested lawyers or law firms who feel they were previously left out of the list may to provide information for consideration to determine if they qualify for the next listing but that will not guarantee any listing.

THE LAWYER AFRICA undertakes not to charge for listing any lawyer or law firm. However, upon publication of a listing, as part of recovering the sunk costs we incur in the research and publication of the listings, we shall charge a token for printing and shipping of Quality A3 Certificate for listed Law Firms and/or A4 Certificate for listed Lawyers who wish to have or display the branded souvenirs or to use our proprietary digital materials in their business  branding. We may also charge listed and unlisted law firms and lawyers an affordable fee for limited banner advertising or publishing of enhanced profiles next to the listings.

For any question or feedback on any list or listing, feel free to contact THE LAWYER AFRICA PUBLISHER at info[at]thelawyer[dot]africa.

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News & Analysis

The Roles of the Three Parts of the Permanent Court of Arbitration




H.E. Amb. Marcin Czepelak, the Fourteenth Secretary-General of the Permanent Court of Arbitration (PCA)

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News & Analysis

Brief History of the Permanent Court of Arbitration (PCA)




By Dr. Kariuki Muigua, PhD, C.Arb, Current Member of Permanent Court of Arbitration (PCA) Representing the Republic of Kenya.

The Permanent Court of Arbitration (PCA) is a 124 Years Old Intergovernmental Organization currently with 122 contracting states. It was established at the turn of 20th Century during the first Hague Peace Conference held between 18th May and 29th July 1899. The conference was an initiative of then Russian Czar Nicholas II to discuss peace and disarmament and specifically with the object of “seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.” The culmination of the conference was the adoption of a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.

The aim of the conference was to “strengthen systems of international dispute resolution” especially international arbitration which in the last century had proven effective for the purpose with number of successful international arbitrations being concluded among Nations. The Alabama arbitration of 1871-1872 between the United Kingdom (UK) and the United States (US) under the Treaty of Washington of 1871 culminating in the arbitral tribunal’s award that the UK pay the US compensation for breach of neutrality during American Civil War which it did had demonstrated the effectiveness of arbitration in settling of international disputes and piqued interest of many practitioners in it as a mode of dispute resolution during the latter years of the nineteenth century.

The Institut de Droit International adopted a code of procedure for arbitration in 1875 to answer the need for a general law of arbitration governing for countries and parties wishing to have recourse to international arbitration. The growth of arbitration as a mode of international dispute resolution formed the background of the 1899 conference and informed its most enduring achievement, namely, the establishment of the PCA as the first global mechanism for the settlement of disputes between states. Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in the interpretation or application of International Conventions” arbitration is the “most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”

In turn, the 1899 Convention provided for the creation of permanent machinery to enable the setting up of arbitral tribunals as necessary and to facilitate their work under the auspices of the institution it named as the Permanent Court of Arbitration (PCA). In particular, Article 20 of the 1899 Convention stated that “[w]ith the object of facilitating an immediate recourse to arbitration for international differences which it has not been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present Convention.” In effect, the Convention set up a permanent system of international arbitration and institutionalized the law and practice of arbitration in a definite and acceptable way.

As a result, the Permanent Court of Arbitration (PCA) was established in 1900 and began operating in 1902. The PCA as established consisted of a panel of jurists designated by each country acceding to the Convention with each country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen. In addition, the Convention created a permanent Bureau, located in The Hague, with functions similar to those of a court registry or secretariat. The 1899 Convention also laid down a set of rules of procedure to govern the conduct of arbitrations under the PCA framework.

The second Hague Peace Conference in 1907 saw a revision of the 1899 Convention and improvement of the rules governing arbitral proceedings. Today, the PCA has developed into a modern, multi-faceted arbitral institution perfectly situated to meet the evolving dispute resolution needs of the international community. The Permanent Court of Arbitration has also diversified its service offering alongside those contemplated by the Conventions. For instance, today the International Bureau of the Permanent Court of Arbitration serves as a registry in important international arbitrations. In 1993, the Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment”.


PCA Website: (accessed on 25th May 2023).

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