The challenge of building water integrity lies not only with policies and laws but with practice. Formal policies and laws must be enforced and implemented if the water sector is to be managed for the good of all.
Risks of corruption are reduced when policies, laws, guidelines, rules, rights and duties are clearly defined, implemented and enforced.
Policies and legal instruments provide a framework to cope with competing demands. However, the network of instruments that govern the protection, allocation and diverse uses of water resources often reflects the fragmented state of the sector.
The lack of synergy in state and customary laws
A study by the United Nations Conference on Trade and Development (UNCTAD) and the World Bank found that, in many cases, local communities are at a disadvantage when they do not understand the rights they have under the laws of the state and have no formal title deeds.
A variety of instruments affect the sector: national laws and policies, international and regional conventions and legal frameworks, and non-binding legal instruments, such as guidelines, recommendations, principles and protocols. Moreover, customary laws exist in many countries and these may conflict with formal laws. Without participation in the formulation and implementation of elements of this framework, there is a risk that vested interests will capture the policy making process and undermine trust.
Policy frameworks for good water governance need to identify who is, and who should be involved in water-related decision-making processes.
Social and moral values also influence how laws are implemented and enforced. Corruption undermines belief in legitimacy: compliance levels drop if populations believe that a law or policy is unfair or there is a culture of impunity.
Falling trust in business: is integrity the key?
The 2015 Edelman Trust Barometer, based on surveys in 27 countries, showed trust in governments was below 50 per cent while trust in businesses, NGOs and the media were falling. In relation to the food and beverage industry, one of the largest users of water, 52 per cent of respondents thought there was not enough regulation; only 14 per cent thought there was too much.
The United Nations acknowledges the human rights to safe drinking water and sanitation and calls on states to take measures to ensure their progressive achievement, through transparency in planning and implementation and active, free and meaningful participation of communities and relevant stakeholders.
International instruments include the United Nations Convention against Corruption (UNCAC), which focuses on bribery, embezzlement, misappropriation or diversion of property, the abuse of functions, illicit enrichment, money laundering and obstruction of justice, especially in relation to public officials. The UN has produced an Anti-Corruption Toolkit designed to be tailored to the specific needs of each country.
The global impact of the Foreign Corrupt Practices Act.
The US Foreign Corrupt Practices Act (FCPA) 1977 is relevant to the water sector on a global scale as it applies to any company and its management with connections to the USA. In 2014 the Act was used to prosecute a Texas-based water management, construction and drilling company that had made improper payments to foreign officials in several African countries. Companies must develop a comprehensive compliance management system to combat corruption, including risk assessments, internal controls and measures to ensure that employees are aware of penalties for corruption.
National governments are ultimately responsible for managing river basins, protecting water resources, ensuring a fair allocation between competing users, and ensuring that citizens can access their human rights to water and sanitation services. This requires the establishment of a fair and effective system of regulation and enforcement.
Community rights to water in Colombia
In Colombia, article 365 of the constitution notes that addressing ‘unsatisfied drinking water needs’ is one of the basic objectives of the state. The Administrative Tribunal of Cundinamarca ruled that the collective rights of informal communities near Bogotá were being violated by the poor state of water and sanitation services. It instructed the Capital District to take necessary steps to provide services, in conjunction with the public water service provider and the residents.
Kenya Water Services Regulatory Board integrity measures.
The Kenyan Water Services Regulatory Board (WASREB) promotes better governance at sector and utility levels through multiple measures that embrace:
- Transparency: such as reporting on the performance of water utilities;
- Accountability: such as public exposure of poor-performing utilities;
- Participation; including guidelines on consumer engagement.
Enforcement can be hampered by lack of coordination between different bodies or regulations and can be undermined by improper political influence or restraints on the independence of the judiciary. Without independence and accountability, regulatory capture is a risk.
Transparency International’s National Integrity System.
Transparency International has developed a National Integrity System consultative assessment that can be used to diagnoses strengths and weaknesses in a country’s integrity system, looking at everything from supreme audit institutions and the judiciary to media, civil society and the private sector. The assessment highlights areas for improvement to build momentum, political will and civic pressure for reform.
Transparency, accountability and participation improve policy-making processes when they balance relationships so that participation becomes meaningful. Frameworks for good water governance need to identify all interested stakeholders to be involved in water-related decision-making processes.
Governance is not only about written rules, laws and policies; It is also the sum of actions and decisions made by many different institutions and groups that determine ‘who gets what water, when and how, and decides who has the right to water and related services’. (UNESCO)
- Clearly defined, implemented and enforced laws and policies are needed to safeguard the integrity of the water sector.
- Water policies should incorporate transparency, accountability and participation (TAP) principles in accordance with the obligations of the human rights to water and sanitation.
- Multi-stakeholder participation in policy-making processes is key to ensuring that policy is implemented so that the most vulnerable do not lose out.
- Develop and enforce water policies that incorporate TAP principles along with anticorruption measures in accordance with the obligations of the human rights to water and sanitation. The TAP framework is a powerful tool for states to fulfil their obligation to deliver these human rights. Strengthening enforcement mechanisms is important to ensure that water legislation and anti-corruption legislation effectively improve people’s living conditions, and requires cooperation between anti-corruption, judicial and water institutions.
- Ensure public scrutiny and balance stakeholder interests in political and legislative processes. Water management experiences of the last decade suggest that mobilizing stakeholders is important to ensure that policy is developed and implemented so that it works for integrity and against corruption. The interests of all relevant actors must be taken into account fairly. The current rush for land and water to secure food and energy can lead to hasty policy-making. In this context, the voices of the poor and marginalized – who suffer most from the changes – must be taken into account. Water access in many regions depends on traditional institutions and power relations that do not connect to the state’s legal framework. Adopting, extending or linking customary laws to state laws, when applicable and fair, can help protect the rights of the marginalized and the vulnerable.
- The Human Rights to Water and Sanitation toolkit
- Edelman Trust Barometer
- Sanitation and Water for All, 2014 High Level Meeting
- UN Convention against Corruption
- UN Watercourses Convention
- Transparency International, National Integrity System
- Gender and Water Alliance
- Women for Water Partnership