Creating Policies and a Legal Framework (WS)

In the following, this document tries to provide a brief overview on the human right to water and sanitation and the international norms set by the WHO, which are relevant for sanitation and water management. These rights and norms can be seen as overall goals to achieve in sustainable sanitation and water management.

Coming from this, it is possible for governments on the national, regional and local level to formulate their policies for enabling the environment for sustainable sanitation and water management. Thus, the second part will show who might change policies why and how and what has to be considered when doing so.

While changing or formulating policies that create an enabling environment for sanitation and water management, it is also important for national, regional or local governments to adapt their legal framework. Without a sound legal framework, the policies will be unfeasible, and vice versa. Therefore, the last part of this paper will cover the importance and implementation of a legal framework for sustainable sanitation and water management.

In 2010, the General Assembly of the United Nations declared the right to safe and clean drinking water and sanitation as a human right (UN-GA 2010). The fact that safe drinking water and basic sanitation are now a human right makes them more urgent and puts pressure on (local) governments to realise them.

For reaching the human right to water and sanitation for everyone (read more on this issue here), the policies and legal frameworks of nations, regions and/or municipalities need to be adapted. The adoption of policies and legal frameworks for sanitation and water management can not be achieved without the consideration of the specific local, regional or national backgrounds, i.e. sociocultural issues, religious or  political issues etc. Yet, nevertheless there are some main goals to achieve and some general things to consider when formulating policies and legal frameworks for making the human right to water and sanitation come true.

A basis for the formulation of policies and legal frameworks on all levels are the international norms on water, sanitation and hygiene (“Guidelines”), offered by the WHO, as one of their core functions is setting, validating, monitoring and pursuing the proper implementation of norms and standards (adapted from WHO 2010):

• Guidelines for Drinking-Water Quality
• Guidelines for the Safe Use of Wastewater
• Guidelines for Safe Recreational Water Environments

The WHO guidelines can be used as a framework for national, regional and/or local governments when implementing sanitation and water management intervention tools. They give a close idea of the issues that need to be considered and show what can be achieved in the water, sanitation (and hygiene) sector. As the guidelines are all very bulked, there should be a plan about the priorities to be achieved. The guidelines can be seen as overall objectives.

(Adapted from GWP 2008 and 2009)

Considering international norms and rights, local, regional or national policies are needed, which allow enforcement and enable the implementation of sanitation and water management measures. Policies delimit the activities of all sanitation and water management stakeholder groups, including the ones of the local government.

Appropriate sanitation and water management policies can encourage participatory, demand-driven and sustainable development. They lead to the development of laws and rules and regulation designed to achieve the policy goals.

Sanitation and water management policy on the local level must mesh with overall national economic policy and related national sectoral policies. Sanitation and water management also means that water and sanitation issues within every economic and social sector must be taken into account. Changes in existing policies, legal frameworks and institutions — or their new development — might be required for the successful implementation of sanitation and water management intervention tools (see also creating an institutional framework).

Change is a political process and therefore a negotiated one. It is influenced by a host of factors — history, public perception, development challenges, and social and economic context. As every region and municipality might have its own backgrounds, there are no universally applicable solutions, but the following five stages might help to co-ordinate a policy change within a local government — with the understanding that some stages happen simultaneously, some may be skipped, and some may need to be repeated:

Stage 1: Laying the groundwork for change — gathering evidence and developing a shared diagnosis about problems and possible solutions. In this stage, NGOs might co-ordinate with the local government, and other stakeholders can be involved. Changes are easier when they have a participatory approach from the beginning, so the participation of the civil society should be considered.

Stage 2: Capitalising on a conductive environment for change (e.g. a favourable political situation or a crisis that alerts people to the need for change).

Stage 3: Creating a growing demand for change (converging public opinion that change is needed). When people know about their right to water and sanitation, they are empowered to force their right and might be open for change. Therefore, it is important to inform the public about its right and generally to raise awareness (see PPT), for example by carrying out media campaigns and school campaigns with the help of NGOs or in a participatory process focussed by the municipality.

Stage 4: Negotiating the actual change package — formulating new policy, agreeing on reforms (builds on Stage 1). The negotiations need to be lead by the local government and key stakeholders, but it might involve NGOs, civil society institutions and community-based organisations for reaching the best outcome.

Stage 5: Ensuring implementation and impact — follow-up and monitoring. The monitoring can be done in a participatory way, or a public private partnership can be built for this job. Also, the local government can be the regulator and monitor the implementation, as well as a NGO.
Many water professionals focus on Stages 1 and 4 — formulating the new policy —without considering the other stages necessary to make change happen. Key steps are often ignored as too slow or difficult or unnecessary, especially when a narrowly technocratic or project approach is misused in a social change process. Therefore, always make sure you consider all stages and do not rush some of them — formulating/changing policies is a process that needs its time.

A national government usually has possibilities to formulate or chance policies and/or the legal framework at national level, which are often binding for lower political level.

For regional or local governments, this possibilities vary. It depends on national laws and rights, and on the structure within the country: In countries with a central government that disables regional and local governmental structures, there might be no possibility to change or formulate policies on the regional or local level. In a more decentralised country, where regional or local governments and authorities have some power, they might have a more ample scope (see also decentralisation or nationalisation).

Non Governmental Organisations (NGOs), Civil Society Institutions (CSIs) and Community-Based Organisations (CBOs) can play an important role in developing and communicating policies and legal frameworks. Also, they can work with lobbying and thus influence decision-makers on all levels to adopt international norms and rights.

Communities, schools, households, etc.: Also communities, institutions (such as schools) and even households can formulate their own water and sanitation policies and legal frameworks. Of course, the outreach is limited to their premises, but they can be a powerful tool to optimise water and sanitation management. The Dalit Shakti Kendra, a vocational training institute in Gujarat, India for example, has stringent policies of water use for its students (e.g. only 15 L water per shower are allowed) and a well formulated legal framework (campus rules) to regulate the matter.

(Adapted from GWP 2008)

Policies are more useful if they are designed proactively, not just as a short-term response to a crisis — although a crisis may provide an opportunity for policy change. By failing to anticipate change, and taking a narrow sectoral view, sanitation and water management policy development would frequently ignore both macro-economic and development needs. Some key points for effective sanitation and water management policy making on the local level are:

• Ensure policies clarify the roles and responsibilities of local government and other stakeholders — private and public ones — in achieving overall goals and especially define the role of local government as regulator, as organiser of the participatory process and as a last resort adjudicator in cases of conflict (see also bundling and unbundling of functions).
• Identify and set priorities for key issues to ensure a focused policy. Involve NGOs, CBOs and CSIs in this process.
• Recognise that considering water and sanitation as social (and economic) goods means, that designing policies for sanitation and water management should focus to offer the greatest value to society, starting with the fulfilment of basic needs (see also water sanitation and economy).
• Make explicit in the policy the links between different sanitation and water management activities and link them with other ecosystem policies. Make clear the embedding in the international norms and rights.
• Engage different stakeholders in policy dialogue, recognising potential conflicts.
• Recognise the importance of subsidiarity, so that sanitation and water management decisions are taken at the lowest appropriate level. Always involve civil society to make sure the change is taking place in a participatory manner.
• Take into account trade-offs between short-term costs and long-term gains.
• Make functional arrangements and cost allocation explicit, estimate the costs of policies and identify the means for financing them.
• Recognise the role of women, try to empower them within the policy change (see also water sanitation and gender).
• Take into account sustainability and environmental issues in the planning, design, construction, operation and management of projects.
• Assess the social impact of sanitation and water management developments.
• Mandate the provision of easily accessible, accurate and up-to-date data on sanitation and water management and the implementation of intervention tools.
• ‘Reform’ in the sense of changing institutional mandates, policies and legislation is not always what is needed. In some cases, the focus needs to be on implementation of policies or strategies already agreed upon and removing obstacles that prevent organisations from realising their mandate, legislation from being enacted, or policies from being put into practice (see also strengthening enforcement bodies).

(Adapted from GWP 2008)

The role of laws for sanitation and water management is to implement and enforce policy, and provide effective administrative and regulatory mechanisms at appropriate levels. Thus, the legal framework is a powerful and crucial tool to support sanitation and water management on the local level, necessarily going hand in hand with the formulation or change of policies explained before. Creation of modern sanitation and water management supporting legislation should follow from the development of integrated and coherent local policies.

Legislation may be reformed to include the core elements of sustainable sanitation and water management and to support the policy objectives of a national, regional or local government. The legal framework should emphasise principles in support of sanitation and water management elements. Legal reform topics which help create a strong framework might include:

• The enabling institutional framework, including the legal roles and responsibilities of institutions and their inter-relationship (see also institutional framework);
• Mechanisms for different stakeholders (local governments, private parties) to participate in sanitation and water management, e.g. in public private partnerships;
• Water and sanitation services and associated rights and responsibilities, covering, for example: provision of water and sanitation for basic human needs, and standards of service (quality of water provided, assurance of supply, efficiency levels, etc);
• Tariff and water pricing systems, including principles of fairness, affordability and protection of the poorest;
• Customer protection mechanisms, such as timely and appropriate access to information, participation and involvement in sanitation and water management;
• Equitable allocation of water and sanitation rights by the local government;
• Regulatory (might be in the hand of local authorities) and enforcement functions.

(Adapted from GWP 2008)

• New legislation should be socially acceptable and administratively feasible. Administrative work should not be underestimated, and can not always completely be done by the local government. The involvement of NGOs might help.
• Keep in mind that a new or changed legal framework for sanitation and water management on the municipality level does not make sense, when there is no possibility to enforce it. The enforcement of the laws is at least as important as the laws themselves.
• Water and sanitation law needs to tread a careful line between completeness and flexibility. It needs to be flexible enough to reflect changing circumstances, yet explicit and complete enough to ensure full discussion of the basic principles and policies and their implications. If not sufficiently firm and clear, framework legislation may allow for arbitrary decision-making by implementers.
• Regional and local water and sanitation laws must take into account any national laws and international conventions accepted by the country. If you do not know where to find those laws and conventions, a water and/or sanitation NGO might help you to get an overview and find the documents. Also, there might be some information about your country to find in the Internet.
• Legislative change creates stress for existing uses and water and sanitation rights. In law reform, existing rights and uses and the entitlements of rural and indigenous populations should be protected and transitional provisions made.
• New water and sanitation legislation should empower women (see also water sanitation and gender).