15 November, 2011
By Article 19
The Senegalese government must do more to promote the free flow of information, transparency, and civic engagement in decision-making over water infrastructure. Water is too scarce a resource for discussions surrounding its distribution to be conducted in secrecy without consulting affected stakeholders, particularly the disadvantaged. ARTICLE 19 urges the Senegalese government to actively participate in tomorrow’s debate on the impact on disadvantaged consumers of privatising the water infrastructure, organised by CICODEV Africa. The debate coincides with a visit to Senegal of the UN Special Rapporteur on the human right to safe drinking water and sanitation, who will also be promoting dialogue on these issues.
The Senegalese government is currently revising the terms by which it contracts the provision of water services in the country. The outcome of this discussion is likely to significantly affect the financial and geographical accessibility of water in the country, and therefore is a debate of immense public importance. However, the discussions to date have taken place behind closed doors, without consultation with affected stakeholders or civil society organisations. This violates international standards on the rights to freedom of expression and information.
ARTICLE 19 believes that the availability and accessibility of information is integral to empowering people to demand their rights to public services. Transparency and the free flow of information, including the right of all to seek, receive and impart information and ideas related to development, are fundamental to reducing corruption, promoting accountability and ensuring sustainable development. Tomorrow’s stakeholders’ debate organised by CICODEV provides an opportunity for engagement on these terms, and is therefore a positive step in the right direction.
The Impact of Proposed Changes to Water Distribution in Senegal
During the last fifteen years, the Senegalese government has delegated the provision of water services to a private company, Sénégalaise des Eaux (SDE), owned in part by the private company Bouygues. In October 2011, this contract was to come to an end, but was provisionally extended to December 2012 as discussions on a replacement contract continued. Under the current c ontract, the responsibility of SDE is limited to the provision of water services; it does not own the water infrastructure and is not responsible for the development of it. The government currently retains these latter responsibilities, and has received substantial support from the World Bank, International Monetary Fund (IMF) and other partners in developing that infrastructure in line with public interest objectives.
On May 12th 2011 the Senegalese government, without consulting with civil society or affected stakeholders, signed a protocol with SDE to conduct a feasibility study into a replacement contract under substantially different terms. The replacement contract would have a much longer duration, lasting thirty instead of five years. The proposals would also substantially shift responsibilities from the public sector to the private, making the selected private company a full concessionaire entrusted with the additional obligation of developing the water infrastructure. The government’s statement implied that under this contract, the government and public institutions would have no responsibility for maintaining, developing or financing the water infrastructure.
Civil society organisations have complained to ARTICLE 19 that the government has been highly secretive in deciding the terms of the new concession, including the selection of the favoured private contractor. To date there has been no consultation with affected stakeholders, and no assessment of the impact that the proposed structural and fiscal changes will have on deprived individuals’ access to water and the ability of Senegal to meet its Millennium Development Goals (MDGs) on urban water.
According to an initial assessment by our partner organisation CICODEV (the Pan-African Institute for research, training and action for Consumer Citizenship and Development), the consequences of moving toward a concession contract with augmented private sector responsibilities are likely to be significant, particularly for deprived individuals using up to than 20 cubic meters of water every two months.
Firstly, there are justifiable concerns that for the new concessionaire to sustain or increase its current profit margin under the new contract, utility bills will have to be increased considerably to recoup the additional costs of maintaining and improving infrastructure. Increasing utility prices will disproportionately impact economically disadvantaged individuals who have fewer resources to meet those bills.
Secondly, it is predicted that economic incentives for infrastructural development will be distorted toward maximising short-term profits, with new developments targeting high-consumption industries rather than less lucrative markets in deprived communities. The government and SDE are currently studying the feasibility of incorporating a public interest mandate into the concession, however, these discussions have not been subject to public scrutiny. Stakeholders have expressed concern that the new contract threatens to compromise the advancements made by the government’s internationally sponsored public-interest development programs over the past fifteen years. Indeed, Senegal is currently one of the only sub-Saharan African nations set to meet its MDG for urban water by 2015, a status that may be jeopardised by this new contract.
Thirdly, the shift of responsibilities from the public to private sector may exclude Senegal from eligibility for development loans on favourable terms from the World Bank, IMF, and other international partners. Under the concession contract, the government would not be permitted to intervene in infrastructure development, financially or otherwise. The concessionaire would therefore have to attract financing for infrastructural development from private banks on less favourable terms, or recoup its losses by further increasing utility prices. Again, this would disproportionately impact economically disadvantaged consumers.
At the initiative of civil society organisations in Senegal, led by CICODEV, these issues are to be discussed at tomorrow’s stakeholders’ debate on the issue of “disadvantaged consumers and the water concession in Senegal.” ARTICLE 19 will attend the event and urges the Senegalese government to take this opportunity to engage actively with civil society organisations and stakeholders to explain its position on the water concession and rectify the lack of transparency and absence of public consultation in this process to date.
International Standards on Freedom of Expression and Access to Information
ARTICLE 19 notes that international standards on freedom of expression and access to information demand more of the Senegalese government. The lack of transparency concerning the water concession demonstrates the urgency with which the Senegalese government should follow through on its commitment to enact access to information legislation. At the 50th Session of the African Commission on Human and Peoples’ Rights on October 29 2011, the Working Group on African Platform on Access to Information urged all African governments to endeavour to pass a law on access to information.
ARTICLE 19 reminds the Senegalese government that numerous international human rights treaties reference the right to water, including articles 11 and 12 of the International Convention on Economic, Social and Cultural rights. Significantly, the right to water was recognised as legally binding by the UN General Assembly in Resolution 64/292 (28 July 2010). The UN Human Rights Council affirmed this in its Resolution on Human Rights and Access to Safe Drinking Water and Sanitation (September 2010), adding that delegating the delivery of safe drinking water services to a third party does not exempt the state from its human rights obligations.
The application of freedom of expression and access to information principles to development decisions, particularly the right of access to water, is well established in international law. The UN Committee on Economic, Social and Cultural Rights’ publication “Right to Water” specifically addresses water information, and at Article 12(c)(iv) that accessibility “includes the right to seek, receive and impart information concerning water issues.” Article 48 elaborates upon this, stating that “individuals and groups should be given full and equal access to information concerning water, water services and the environment, held by public authorities or third parties.” Article 53 imposes further obligations to monitor different components of adequate water such as sufficiency, safety and acceptability, affordability and physical accessibility.
In their September 2010 Resolution, the UN Human Rights Council called on states to ensure full transparency in the planning and implementation process for the provision of safe drinking water. They also stressed the importance of active, free and meaningful participation of concerned local communities and relevant stakeholders. It further highlighted the need for grievances, accountability and redress mechanisms as part of this process.
The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention), outlines the requirements for public participation at Article 6, including that a state must set out the proposed project, allow time for consideration, facilitate open discussion, and take due account of the public participation in the final decision. Although Senegal is not a signatory of this treaty, it is illustrative of international standards on this issue.
The rights of access to information, public participation, and access to justice also form Principle 10 of the 1992 Rio Declaration on Environment and Development:
“Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”
The 2010 London Declaration for Transparency, Free Flow of Information and Development, developed by ARTICLE 19 and group of experts, also sets a clear agenda for transparency in the promotion of development. This Declaration sets forth four overarching principles should guide all decision making regarding development in Senegal:
First, the free flow of information, transparency and civic engagement are fundamental to the achievement of the MDGs, and the global fight against poverty
Second, the free flow of information includes protecting and strengthening the right of all to seek, receive and impart information and ideas related to the MDGs and development, and the existence of a free, diverse and professional media
Third, transparency requires collecting, producing, and disclosing accessible, credible and disaggregated data on MDG indicators and targets, as well as on budgets, aid assistance and revenues from natural and other resources
Fourth, civic engagement requires establishing and protecting an enabling environment for civil society organisations (CSOs) and the media, and active participation by all, in particular people living in poverty and those discriminated against, or marginalised.
Conclusion
It is clear from the international standards that it is not sufficient for the Senegalese government to disclose information only when persistently lobbied by civil society organisations, and to only agree to consultation with affected stakeholders once advanced discussions have concluded and irreversible decisions have been made. Merely informing stakeholders of the outcome of discussions denies them their right to be heard in the decision-making process.
ARTICLE 19 calls upon the Senegalese government to address deficiencies in its current practices and enact a comprehensive access to information law that ensures the free-flow of information regarding development decisions, maximising transparency and civic participation. This legal framework must be implemented in practice to ensure that affected stakeholders are given a voice in development decisions that significantly affect their lives.
Article courtesy of http://www.article19.org/resources.php/resource/2846/en/senegal:-free-flow-of-information-integral-to-discussions-on-water-privatisation, retrieved on 16 November, 2011.
