EXECUTIVE SUMMARY Despite the unequivocal recognition of Water, Sanitation, and Hygiene (WASH) as a fundamental human right at global, regional, and national levels, the existing legal and policy frameworks in Kenya and across Sub-Saharan Africa present a fragmented and often inconsistent landscape for sustainable WASH financing. While Kenya stands out with its progressive constitutional provisions (Constitution of Kenya 2010) and foundational statutes like the Water Act 2016 and the Public-Private Partnerships Act 2021, significant legal gaps, regulatory inconsistencies, and institutional capacity deficits continue to undermine efforts to mobilize requisite private capital, climate finance, and innovative financing mechanisms.
This policy brief, grounded in a rigorous analysis of prevailing legal and policy instruments, identifies critical structural and regulatory reforms. It proposes actionable strategies to catalyze sustainable WASH financing, with a particular focus on enhancing the viability of public-private partnerships, leveraging green and infrastructure bonds, fostering microfinance innovations, and integrating digital finance solutions. The aim is to bridge the substantial funding gap and accelerate the achievement of universal, equitable, and safely managed WASH services.
WASH AS A HUMAN RIGHT: GLOBAL, REGIONAL, AND NATIONAL COMMITMENTS The right to water and sanitation is firmly embedded in international, regional, and national legal frameworks, forming the normative foundation for both state obligations and individual entitlements. At the international level, the United Nations General Assembly Resolution 64/292 (2010) explicitly recognized the human right to safe and clean drinking water and sanitation. This recognition was further reinforced by the UN Human Rights Council Resolutions 15/9 (2010) and 27/7 (2014), which affirmed that these rights derive from the right to an adequate standard of living and are intrinsically linked to the right to the highest attainable standard of physical and mental health.
States are therefore obligated to progressively realize these rights without discrimination. The legal basis is further strengthened by General Comment No. 15 of the UN Committee on Economic, Social and Cultural Rights, which provides authoritative interpretation of the right to water, and by subsequent resolutions such as UNGA Resolutions 64/292 and 70/169, as well as HRC Resolutions 15/9 and 33/10, all of which formally recognize both water and sanitation as distinct yet interrelated human rights. At the regional level, although the African Charter on Human and Peoples’ Rights (1981) does not explicitly articulate the right to water and sanitation, Article 16 (right to health) and Article 24 (right to a satisfactory environment) are widely interpreted to encompass access to WASH.
The African Commission on Human and Peoples’ Rights has further clarified this through its 2019 Guidelines on the Right to Water in Africa, which assist State Parties in fulfilling their obligations under the Charter, particularly as they relate to economic, social, and cultural rights. Regionally, instruments such as the African Water Vision 2025 and the Ngor Declaration on Sanitation and Hygiene (2015) reflect stronger political commitments to universal and equitable access to water and sanitation services, with a particular emphasis on accountability, sustainability, and gender equity.
Nationally, the Constitution of Kenya 2010 serves as a foundational legal pillar for the realization of WASH rights. Article 43(1)(d) guarantees every person the right to “clean and safe water in adequate quantities,” while Article 42 affirms the right to a clean and healthy environment. Additionally, Article 69 places an obligation on the State to ensure sustainable environmental management. Collectively, these provisions provide a robust constitutional basis for the legal enforcement and progressive realization of WASHrelated services in Kenya.