A/HRC/42/47/Add.5
will always be undertaken when the country is in a position to implement the provisions of
the different Conventions” (A/HRC/33/49/Add.6, para.27).
12.
The Government responded to the questionnaire sent by the Special Rapporteur
stating that currently it has no plans to ratify the ICESCR and its Optional Protocol.
13.
The Special Rapporteur is disappointed that the Government has not started progress
in considering the signing and ratification of the ICESCR and its Optional Protocol. The
explanation of the Government as to why the ICESCR and its Optional Protocol have not
been ratified indicates that Botswana has the ambition to respect, protect and fulfil the rights
contained within the Covenant, and, indeed, already recognises the importance of some of its
provisions within its national law. Whilst Botswana may currently regard itself as being
unable to ratify the ICESCR and its Optional Protocol, as it is not yet in a position to
implement the provisions therein, the Special Rapporteur makes clear that ratification of the
ICESCR is a necessary step towards achieving the Government’s ambition to ensure these
rights. The ICESCR is drafted as a framework to guide States parties towards the progressive
realisation of the rights contained therein. When considered in this light, ratification of the
ICESCR will provide clear guidance on the normative content of the human rights to water
and sanitation and on human rights principles and, accordingly, is an important precursor to
the implementation of its provisions.
PROGRESS NOT STARTED: The Special Rapporteur strongly recommends that
Botswana commit itself to the international legal obligations on economic, social and
cultural rights by signing and ratifying the International Covenant on Economic, Social
and Cultural Rights and its Optional Protocol. This will provide clear guidance on the
human rights to water and sanitation and on important human rights principles, which
will assist the State in realising those rights, as well as other economic, social and
cultural rights.
B.
Recommendation on regulatory framework
RECOMMENDATION 2: “Establish an independent regulatory mechanism with the
mandate and adequate financial and human resources to monitor the implementation of the
human rights to water and sanitation, including good quality water and affordable services.”
(A/HRC/33/49/Add.3, para. 72(h))
14.
At the time of visit, the Government did not accept the recommendation that an
independent regulatory body should be established to monitor water and sanitation standards,
explaining that whilst the Cabinet had approved the establishment of the Botswana Energy
Regulatory Authority, it had excluded water from the jurisdiction of the regulator on the basis
that water is “considered a strategic commodity which cannot be left in the hands of the
private sector” (A/HRC/33/49/Add.6, para. 28). The exclusion of water from the remit of
regulatory authorities was disappointing, as failure to ensure independent oversight of the
functions of water providers is highly likely to weaken the enjoyment of the human rights to
water and sanitation (A/HRC/33/49/Add.3, para. 16).
15.
However, in its response to the Special Rapporteur’s follow-up questionnaire, the
Government has stated that it has since taken a decision to create an independent regulatory
body for water provision. Whilst this body is yet to be established, the Government has noted
that it has directed the “promulgation of legislation of the establishment of an Independent
Water Regulator” by way of Presidential Directive.5
16.
The Special Rapporteur welcomes the positive development on the establishment of
an independent regulator in the water and sanitation sector (see, A/HRC/36/45). The
establishment of effective, independent regulatory bodies is vital to the achievement of the
human rights to water and sanitation as these entities can, inter alia, generate impartial,
human rights-centric standards for actors operating in the water and sanitation sector and
ensure accountability for any breaches of those standards. Such an independent regulator
5
4
Presidential Directive CAB 32 (B)/2017.
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