• Judge Kossy Bor directed Transport CS to constitute and chair a working group that will provide toilets and end the indignity of hiding behind thickets when nature calls.
• This stems from the right of a citizen to a clean and healthy environment and follows an application by petitioner Adrian Kamotho.
The shame of relieving yourself on the side of the road while on your bus trip or heading to your village could be a thing of the past.
The High Court has ordered the Ministry of Transport to build toilets on key highways and roads countrywide.
This stems from the right of a citizen to a clean and healthy environment and follows an application by petitioner Adrian Kamotho.
Judge Kossy Bor directed Transport CS to constitute and chair a working group that will provide toilets and end the indignity of hiding behind thickets when nature calls.
Bor said the right to a decent public toilet is a fundamental right Kenyans should enjoy.
Article 69 (1) of the Constitution obligates the state to eliminate processes and activities that are likely to endanger the environment. Such processes include road users relieving themselves in bushes and open spaces along Kenyan roads, the judge noted.
“The state needs to provide clean and decent toilets for road users to relieve themselves while on their journeys to give effect to the right to a clean and healthy environment,” the judge ruled.
“Unlike the other rights in the Bill of Rights, which are guaranteed for enjoyment by individuals during their lifetime, the right to a clean and healthy environment is an entitlement of present and future generations and is to be enjoyed by every person with the obligation to conserve and protect the environment.”
The judge further directed the National Transport Policy to incorporate toilets and other sanitation facilities as part of the roadside developments in the road designs for existing and new roads.
In addition, he ordered that sufficient number of such facilities be provided on the road stops on national and international trunk roads.
The policy should also ensure the toilets and other sanitary facilities are well maintained by the county governments once constructed, the court held.
The Council of Governors, too, the judge ordered, should constitute committees that will liaise with KeNHA and other road authorities in the formulation and implementation of policy for provision of toilets.
Kamotho had accused the Council of Governors, the Kenya National Highways Authority, the Kenya Rural Roads Authority and the Kenya Urban Roads Authority of breaching the law in obstructing citizens from accessing their toilets or charging a fee.
He sought an order requiring the four to set up hygienic sanitary facilities, including functional public toilets within their jurisdictions and throughout Kenya’s road network in 60 days.
“Sanitation is a first-generation right that citizens should not be arbitrarily denied and responding to a call of nature is an inevitable human process for which citizens have entirely no control,” he argued.
He noted that in spaces where there are public toilets, people are charged a fee and those who can't afford are turned away.
And because of lack of proper options for sanitary facilities in most cases, motorists and commuters urinate, defecate on the streets, road reserves, adjacent bushes or any open space, he said.
“Out of necessity, road users are compelled to respond to calls of nature in full glare of their children, relatives and other commuters which is humiliating and degrading”.
Women and children, he said, bore the bigger brunt and go through the greatest agony when they need to relieve themselves while travelling.
“Ingenious methods have had to be devised through the use of plastic bags and containers for human waste, which is flung through the windows of moving vehicles,” he said.
The Council of Governors opposed the case, saying its mandate is distinct from that of county governments which are mandated to provide water and sanitation.
KeNHA said it does not have a role to play in the provision of basic sanitation facilities as this does not fall in their docket but rather in county governments. It defended itself as a national government agency whose work includes road traffic and construction of national trunk roads.
The court, however, declined to stop the county governments from charging fees for the use of existing public toilets.