Zambia
The laws of Zambia do not establish a right to water or a right to sanitation. Zambia voted to abstain from U.N. General Assembly Resolution 64/292 (2010) recognizing a right to safe and clean drinking water and sanitation as a human right. Zambia voted in favor of U.N. General Assembly Resolution 72/178 (2017) reaffirming the human rights to safe drinking water and sanitation. A representative for Zambia did not sign the eThekwini Declaration in 2008. In the 2019 GLAAS Report, Zambia reports that its Constitution does not establish either a human right to sanitation or a human right to drinking water.
Equity and non-discrimination
Zambian law provides protections against discrimination in any form, at takes steps to redress past discrimination by building a focus on gender equity into its laws. While the law does take specific steps to protect explicitly the right to water, the same is not true of sanitation, which is left to individual households to address. Where the government does have a role in providing assistance, financial or otherwise, for sanitation, the law requires that the assistance be provided in a non-discriminatory manner. The government does have a responsibility to protect the right to a clean environment for all citizens, which creates an implied responsibility to ensure that communities are protected from the impacts of poor sanitation in an equal, non-discriminatory way.
Responsibility for each stage of the Sanitation Value Chain
Zambian law covers most, but not all, of the sanitation chain. Responsibility for the collection and treatment of waste is provided to the Local Authorities through the National Decentralization Policy and the Public Health Act. The Local Authorities have the option of creating or hiring a utility to provide these services. The utility’s rates and compliance with various laws is overseen by the National Water Supply and Sanitation Council, a quasi-governmental regulator headed by members drawn from various relevant government ministries and the public. While the Water Resources Management Agency is charged with setting standards for water quality, with the Zambian Bureau of Standards, and monitoring that those standards are met, the Environmental Management Agency has primary responsibility for issuing permits for pollutive activities and for investigating and bringing enforcement actions against unlawful pollution, including by improper sanitation. Both WRMA and the EMA are housed under the newly-created Ministry for Water Development, Sanitation and Environmental Protection, though the agencies are separate. Licensing of Commercial Utilities is undertaken by NWASCO, with local authorities setting basic standards for siting and construction of latrines, including enforcement of building and health codes, and the national-level ministry having overall responsibility for setting policy and legal requirements and providing overall monitoring of water quality and enforcement for pollution caused by sanitation. The national government, through EMA and WRMA, also has the primary responsibility for ensuring that reuse of recycled waste does not pollute the environment or waters.
Law should prevent contamination by fecal waste
Contamination, or any discharge that has an adverse effect, is prohibited under Zambian law, both under the Constitution and under the Environmental Management Act and the Public Health Act. For wastewater and effluent, the Zambian Environmental Management Agency (ZEMA) has the primary responsibility to prevent contamination of the environment and waters, but must coordinate its efforts with other authorities, including the Water Resources Management Authority (WRMA)
The Environmental Management Act also mandates ZEMA to set and enforce water quality and pollution control standards, including the discharge of pollutants into the environment.
ZEMA is tasked with “do[ing] all such things as are necessary for the monitoring and control of water pollution” including setting the standards for water quality and pollution control, in conjunction with the Water Resources Management Agency which focuses on how the waters are being used.
In addition to requiring licenses before discharging pollutants, including discharges into sewerage systems which requires the approval of the Local Authority, EMA gives ZEMA the authority to determine the source of contamination. ZEMA has the express power to order or carry out investigations of actual or suspected pollution, collect data for those investigations, order abatement measures, collect data preemptively on effluent from Local Authorities and industries, and to designate or create laboratories to analyze data or samples collected. Local authorities have the primary responsibility to ensure collection and proper disposal of waste, with ZEMA overseeing their compliance with the EMA. Local Authorities are also authorized to pass by-laws that ensure compliance with various laws that protect against contamination.
Before beginning construction or other activities that might harm the environment, an Environmental Impact Assessment must be undertaken and approved. During the course of that activity, persons are requires to take all precautionary measures to prevent other harm from taking place as a result of their activities, regardless of whether it was contained in the EIA or not. ZEMA can begin investigations and bring enforcement actions. ZEMA can also issue a preemptive prevention order if a certain activity is deemed by ZEMA to pose a threat to the environment of adverse effects. The Public can also submit factual dossiers to ZEMA and ask for the Agency to make an enforcement order or can make requests that an investigation be started. On household sanitation and wastewater, Local Authorities are tasked with ensuring proper waste collection and disposal. If they fail to comply, leading to contamination of waters, then the EMA allows them to be investigated and prosecuted by ZEMA, though this is not made explicit in the law itself. Local Authorities are also tasked with ensuring that proper drainage and waste removal systems are created, including taking steps to proactively reduce or prevent contamination that could cause an adverse effect. NWASCO has the responsibility to provide oversight of utility licensees to ensure that these utilities follow licensing requirements, including any requirements to mitigate or reduce contamination. WRMA also has the capacity to determine if water allocations permits might lead to greater contamination and to take action to limit those withdrawals accordingly to prevent degradation of the environment.
Enforcement power
Enforcement stretches across various agencies, actors and levels of government. For nuisance actions that are impacting residents, the local authorities have the responsibility under the Public Health Act to take enforcement actions against individuals causing the nuisance. Utilities that provide wastewater removal are subject to oversight by NWASCO, which ensures that the utility meets the standards required by their license, or can revoke their license. The WRMA and EMA together ensure that allocations and water uses do not cause adverse impact to the environment or to those using the water. While ZEMA appears to have the greater Inspectorate and enforcement capacity, both ZEMA and WRMA can, in consultation, order remediation or preemptive actions to prevent pollution. These orders are enforceable and binding.
Penalties
Under the Constitution, persons responsible for polluting or degrading the environment are responsible for paying for the damage done to the environment. The EMA allows for the use of penalties for not following proper procedure and failing to get a license, as well as for the adverse impacts of pollution. The EMA also allows for prevention orders that require remedial or emergency action. If those prevention orders are not followed, there may be additional fines. Protection orders can also be used to prevent harm to the environment; failure to comply with the protection orders may lead to fines or jail time. Continued noncompliance can also lead to additional fines. Environmental Restoration Orders can be used to compel remediation of an environment when there has been a discharge into the environment. The ERO can require full repair of the site, including actions to address the risk. There are additional penalties available for more serious infractions, including imprisonment up to ten years and significant fines. In some situations, ZEMA can also issue a cost order requiring the payment of ZEMA’s costs of taking action. When an assessed fine is paid, that prevents further enforcement action for the same violation. Additionally, if the inspector collecting the fine does not provide a receipt or does not account for the monies collected, then the inspector can be fined or imprisoned.
NWASCO also has the capacity to suspend or terminate licenses for utilities if the licenses were improperly or illegally obtained, or if the utility or service provider is contravening or likely to contravene the Water Supply and Sanitation Act of a NWASCO directive. NWASCO must also publish these determinations in the official government Gazette, provide a copy to the local authority where the utility operates, and publicize the notice in the media to ensure affected persons are aware.
Local Authorities also have the power under the Public Health Act and associated regulations to address failing on-site sanitation. The Local Authority first makes a request to take an action to address a leaking or failing system; if it is not fixed, the Local Authority can fix the issue and recover the costs from the violator. Nuisances and improper building, maintenance or siting of latrines can also lead to similar remedial actions and recovery of costs.
The Water Resources Management Act also provides penalties for discharge of effluents or pollution into waters, whether the discharge is directly or indirectly made into the waters, regardless of whether the discharge is of organic or inorganic material.
Roadmap to sanitation laws
A variety of laws, regulations and policies speak to the provision of sanitation services, including the Constitution of Zambia, Environmental Management Act of 2011, the Water Resources Management Act, the Water Supply and Sanitation Act of 1997, the Public Health Act, the Public Health (Drainage and Latrine) Regulations, the Open Defecation Free Zambia Strategy, the National Urban Water Supply and Sanitation Programme (NUWSSP), and the NWASCO 2016-2020 Plan.
Governance, generally
The Republic of Zambia is a “unitary, indivisible, multi-ethnic, multi-racial, multi-relgious, multi-cultural and multi-party democratic State.” Article 4(3).
The legislative authority of the Republic dervies from the people of Zambia. Article 61. The Constitution establishes the Parliament of Zambia which consists of the President and the National Assembly. Article 62(1). Legislative authority is vested in the National Assembly. Article 62(2). A person or body, other than the Parliament, shall not have power to enact legislation except as provided for in the Constitution. Article 62(3). Parliament may confer on a person or authority the power to make statutory instruments. Article 67. Exclusive national functions include disaster management, refugees, water resources management, and natural resources, amongst others. Annex A. The national government shares the following functions with the provinces, including legal affairs, consumer protection, customary law, environmental management, health services, housing, nature conservation, pollution control, public works, urban and rural development, resettlement, amongst others. Annex B. Exclusive local functions include pollution control, building regulations, district planning, district health services, district public works, storm water management, water and sanitation services limited to potable water supply systems and domestic wastewater and sewage disposal systems, control of public nuisances, refuse removal, amongst others. Annex C.
Executive Authority derives from the people of Zambia. Article 90. The President is the head of State and Government and Commander-in-Chief of the Defence Force. Article 91. The President will promote and protect the rights and freedoms of a person and uphold the rule of law. Article 91.The President shall negotiate and sign international agreements and treaties and subject to the approval of the National Assembly ratify or accede to international agreements. Article 92(2). The President can also establish, merge and dissolve Government ministries, subject to the approval of the National Assembly. Article 92(2). With respect to law-making, the President can initiate Bills for submission to the National Assembly. Article 92(2). There shall be a Cabinet consisting of the President, Vice-President, Ministers and the Attorney General. Article 113. The role of the Cabinet is to approve and implement Government policy, approve Government Bills for introduction to the National Assembly, recommend the accession and ratification of international treaties. Article 114. The President is responsible for appointing Members of Parliament as Ministers who will be responsible for the policy and strategic direction of a Ministry, department, or other State institution as assigned by the President. Article 116. The President must also appoint a Provincial Minister for each Province from the Members of Parliament. Article 117.
The judicial authority of the Republic dervies from the people of Zambia. Article 118. Judicial authority is vested in the courts. Article 119. Courts can hear civil, criminal and Constitutional matters. Article 119. The Judiciary shall consist of superior courts and subordinate courts, small claims courts, local courts and courts as prescribed. Article 120. Courts shall be devolved to the Provinces and progressively to districts, except for the Supreme Court and Constitutional Court. Article 120(4). The Suprume Court and Constitutional Court have equal authority. Article 121. Superior courts shall sit as circuit courts in districts. Article 120(5). Zambia also creates a Court of Appeal and High Court. Article 130, 133.
The Constitution devolves the management and administration of the political, social, legal and economic affairs of the State from the national to the local level of government. Article 147. The President may create or divide a Province or merge two or more Provinces. Article 149(1). A Province will consist of a prescribed number of districts and a district will consist of a prescribed number of wards. Article 149(2), (3). For each Province there will be a Provincial Minister, provincial Permanent Secretary and other staff. Article 150. A structure of local governance is also created to govern districts. A local authority will administer the district, oversee programs and projects in the district, make by-laws and perform other functions. Article 152(1). For each local authority there will be a Council consisting of councillors, a major or council chairperson, and not more than three chiefs repesenting chiefs in the district. Article 152(3), 153.
The Constitution establishes a Human Rights Commission and a Gender Equity and Equality Commission. The Human Rights Commission is responsible for ensuring that the Bill of Rights is upheld and for investigating the observance of rights and freedoms as well as taking necessary steps to secure appropriate redress where rights have been violated. Article 230. The Gender Equity and Equality Commission is responsible for promoting the attainment and mainstreaming of gender equality. Article 231. The Commission must ensure institutions comply with legal requirements and other standards relating to gender equality and take steps to secure redress to complains of gender inequity. Article 230.
Lawmaking, policy making processes
The laws of Zambia consist of the Constitution, laws enacted by the Parliament, statutory instruments, Zambia customary law, and laws and statutes which apply or extend to Zambia. Article 7. The Constitution of Zambia is the supreme law of the Republic of Zambia. Article 1(1). No written law, customary law or customary practice can legally contravene the provisions of the Constitution. Article 1(1). Human dignity, equity, social justice, equality, non-discrimination and sustainable development are national values and principles that apply to the interpretation of the Constitution, enactment and interpretation of the law, and development and implementation of State Policy. Articles 8, 9. Parliament shall enact legislation through Bills passed by the National Assembly and assented to by the President. Article 63. These provisions shall not prevent Parliament from conferring on a person or authority power to make statutory instruments. Article 67. Either a Member of Parliament or Minister may introduce a Bill in the National Assembly. Article 64(1). A President has 21 days to assent to a Bill presented by the National Assembly or refer the Bill back to the National Assembly for reconsideration. Statutory instruments must be published in the Gazette. Article 67(2).
Under the Environmental Management Act, where a policy, programme or plan may have “an adverse effect on environmental management or on the sustainable management and utilisation of natural resources,” the proponent of the policy is required to conduct a strategic environmental assessment and present the report to ZEMA for approval. EMA 23. If the policy proponent concludes that an environmental assessment is not required, ZEMA is required to review a draft of the proposed policy and determine whether an assessment is required. EMA 23(4). Because sewered and non-sewered sanitation (NSS) may have an adverse effect on the environment, it is likely that sanitation policies, programmes and plans would require an environmental assessment before adoption.