Abstract

In Africa, sanitation remains one of the most important developmental challenges that is not adequately addressed. In many countries, though sanitation is fundamental to human well-being, there is no recognition in the Constitution of a fundamental right to basic sanitation. Legislation and policies often govern the area and the question arises as to whether this offers sufficient protection for the interests involved. This article calls for an express constitutionalisation of the right to sanitation. This call is based first on the importance of the right; second, on the need to do justice to the historical context in many countries (with a particular focus on South Africa); third, for reasons related to a better enforcement of the right; and, fourth, because the prospect for successful monitoring by non-judicial bodies is enhanced. However, the article also recognises that it is unwise to meddle with the Bill of Rights of an existing constitution so to insert the right to sanitation expressly. In such situations, the right to sanitation can be recognised efficiently through developing the content of other rights that are expressly recognised. The article considers the link between the right to sanitation and a range of rights comprising the rights to housing, health, food, water, environment, education, freedom and security of persons, privacy and the right to life. The article concludes that sanitation deserves express recognition in constitutions, especially in countries undergoing constitutional reforms or adopting a new constitution.