An Act of Parliament to amend the Water Act, 2016 to provide for Public Private Partnerships arrangements.
| PROPOSED PROVISION FOR AMENDMENT | PROPOSED AMENDMENT | OUR COMMENTS |
|---|---|---|
| Clause 2 Amendment of section 2 of No. 43 of 2016 | Section 2 of the Water Act, 2016 ("the principal Act") is amended: (a) by inserting the following new definition in the proper alphabetical sequence: "contracting authority" means: a. at the national government level, a state department, agency, or state corporation which intends to have its functions undertaken by a private party; or b. at the county government level, the county government or county corporation which intends to have its functions undertaken by a private party; and (b) by deleting the definition of "water services provider" and substituting therefor with the following new definition: "water services provider" means a company, agency, authority, state corporation, public benefit organization or any other person providing water services in accordance with a licence issued by the Water Services Regulatory Board (“the Regulatory Board”) for the service areas specified in the licence. | The definition of “contracting authority” has been included to allow national and county corporations to enter into public private partnerships with private entities. This encourages private entities to invest in the water sector. |
For the definition of “water services provider”, the term was already defined in the principal Act. However, the Bill has added “agency, authority and state corporations” as new entities that can be water service providers in this Bill. To conclude, the Bill has widened the scope of the definition to allow more entities to be water service providers. |
||
Clause 3 Amendment of section 32 of No. 43 of 2016 | Section 32 of the principal Act is amended in subsection (1) by inserting the following new paragraphs immediately after paragraph (f): (g) enter into a bulk water purchase agreement with an investor in accordance with the provisions of the Public Private Partnerships Act; (h) enter into a bulk water purchase agreement with a water works development agency. | We propose that a template of a bulk water purchase agreement is added to the Schedule or subsidiary legislation of this Bill. A template ensures consistency in formatting and structure across multiple documents. This makes the document easier to read and reduces the risk of errors and omissions. Furthermore, the use of a template enhances uniformity. |
Clause 4 Amendment of section 68 of No. 43 of 2016 | Section 68 of the principal Act is amended by inserting the following new paragraph immediately after paragraph (b): (ba) operate water works and provide water services: i. by entering into a bulk water purchase agreement with an investor in accordance with the provisions of the Public Private Partnerships Act, 2021; ii. by entering into a bulk water purchase agreement with a water services provider; or iii. as a water services provider until such time as the water works development agency transfers responsibility for the operation and management of water works to a county government or water services provider in whose area of jurisdiction the water works is located: Provided that a national public water works shall not be transferable to a county government. | This clause seeks to provide the water works development agency with additional functions. For example, a bulk water purchase agreement is a new addition to the Bill that allows for the purchase and supply of large quantities of water. |
Clause 5 Insertion of a new section 68A in No. 43 of 2016 | The principal Act is amended by inserting the following new section immediately after section 68: 68A. (1) Each water works development agency shall be licensed by the Regulatory Board with respect to the functions under section 68 (b) and (c) of this Act. (2) The Regulatory Board shall, upon commencement of this Act and as may be necessary thereafter, and with the approval of the Cabinet Secretary, publish the standards and conditions for licensing of water works development agencies under this section. | For sub-clause (2), we propose that the standards and conditions of licensing are published in: a. the Kenya Gazette; and b. the Regulatory Board’s website. Publishing in the Kenya Gazette and website provide an opportunity to reach a broad and diverse audience. This allows members of the public to stay informed on the latest standards and conditions of licensing developed by the Regulatory Board. |
Clause 6 Amendment of section 69 of No. 43 of 2016 | Section 69 of the principal Act is amended: a. by deleting subsection (1) and substituting therefor the following new subsection: (1) As soon as possible, following the commissioning of water works other than national public water works, the water works development agency shall enter into an agreement with any county government or water services provider to provide water services within whose area of jurisdiction the services are located. b. in subsection (2), by deleting the words “, the joint committee, authority"; and c. in subsection (3), by deleting the words "the joint committee, the authority". | This is a good proposal as it seeks to provide clarity between the roles of water works development agencies and water service providers. |
Clause 7 Amendment of section 72 of No. 43 of 2016 | Section 72 of the principal Act is amended in sub-section (1): a. by inserting a new paragraph immediately after paragraph (b): (ba) evaluate and approve water and sewerage tariffs, bulk water tariffs and approve the imposition of such tariffs in line with consumer protection standards for use of water for domestic, commercial and irrigation purposes; b. by deleting paragraph (c) and substituting therefor the following new paragraph: (c) issue and set conditions for licensing of water services providers. | For paragraph (ba), the Bill has added bulk water tariffs as one of the tariffs that the Regulatory Board will evaluate and approve. It is important to note that bulk water tariffs were not present in the principal Act. |
For new paragraph (c), the clause has removed the Regulatory Board’s power to accredit water service providers. We do not agree with this proposal as the Bill has not indicated the alternative entity that will have the power to accredit water service providers. Consequently, we propose that this power remains with the Regulatory Board. Accreditation of water service providers has the following benefits: a. accreditation ensures that water service providers meet set standards for delivering high quality services. Consequently, customers can have confidence in the quality and reliability of the services they receive; b. accreditation ensures that water service providers comply with health and safety standards in their operations. This includes water treatment processes and testing protocols to prevent contamination of water; and c. accreditation enhances the reputation and credibility of water service providers, making them more attractive to investors. |
||
Clause 8 Amendment of section 75 of No. 43 of 2016 | Section 75 of the principal Act is amended in subsection 1 paragraph (c) by deleting the word "accredited" and substituting therefor the word "licensed". | For sub-section (1) (a) of the principal Act, we propose the deletion of paragraph (a) and replacing it with the words “their names, telephone numbers, e-mails and postal addresses”. Providing a water service provider’s telephone number and e-mail address allows customers and the public to directly contact the water service providers. This facilitates communication for enquiries, reporting issues, seeking assistance, or providing feedback. |
Clause 9 Amendment of section 93 of No. 43 of 2016 | Section 93 of the principal Act is amended by deleting subsection (1) and substituting therefor the following new sub section: (1) A contracting authority may enter into a public private partnership (“PPP”) or public partnerships for the exercise and performance by another person as a licensee, of some or all of its functions with respect to a part or the whole of its area of water service provision. | This is a good proposal as it encourages private entities to invest in the water sector. The advantages of PPPs are as follows: a. water supply offers a stable income stream to private entities. This is because water is an essential resource which has a constant supply; b. reduced financial burden on the public sector-Water infrastructure projects require huge investments. By forming a PPP, private entities can share the financial burden of these projects with the public sector; and c. private entities possess specialized knowledge and technical expertise that will improve the water sector. This leads to improved service delivery, cost savings and overall operational efficiency of the water sector. |
Clause 10 Amendment of section 100 of No. 43 of 2016 | Section 100 of the principal Act is amended by inserting the following new subsections immediately after subsection (3): (4) Notwithstanding any provision in this Act, all bulk water supply services which are primarily intended to supply water in bulk to a water services provider in a county or counties other than the county in which the bulk water abstraction works are located shall be undertaken by water works development agencies established under section 65 of this Act and licensed under this section. (5) The Cabinet Secretary may make regulations prescribing the manner in which an application for a licence for bulk water supply shall be made. | We propose the deletion of this proposal. Currently, Nairobi County does not pay other counties for the water it sells to consumers. The Bill seeks to make it mandatory for counties that do not produce their own water to purchase the commodity. Consequently, this proposal will lead to an increase in the price of water paid by the consumers. To conclude, our proposal is for counties like Nairobi County to not pay for the water it sells to its residents. This will ensure the price of water does not increase and therefore, makes water affordable to residents. Furthermore, the right to clean and safe water in adequate quantities is an economic and social right under Article 43 (1) (d) of the Constitution. |