About five years ago, travellers in a Western Kenya-bound bus were shocked after one of them was attacked by a snake as she answered the call of nature in a bush in Londiani on the Nakuru-Eldoret highway. Fortunately for the woman, the snake was nonvenomous.
Scenes of PSVs making stop-overs along the busy road to allow passengers to relieve themselves are common, sometimes in the bushes, and at petrol stations. The key transport corridor does not have public toilets.
A court directed the Ministry of Transport, Infrastructure, Housing, Urban Development, and Public Works, to ensure public toilets were constructed along all highways.
In 2020, High Court judge Kossy Bor ordered the government to constitute a committee to develop a roads policy that would ensure toilets are erected along roads countrywide.
However, the government is yet to comply with the order two years down the line. The matter has since been reduced to a ping-pong game between the ministry and county governments. Each side feels it is the responsibility of the other party.
The Standard has established that only the county government of Machakos has constructed public toilets. However, the six toilet blocks are mainly along sections of roads that are interior.
The county initially constructed public toilets at Rest Area in Mwala, along the 33km Makutano-Kithimani road. Others are at Mlolongo, along the Nairobi-Mombasa highway, and the Tala-Nairobi road.
There are those that have been built along Machakos-Kitui highway, Kyumbi-Machakos highway, and at Kyumbi stage near the Machakos turn-off, along the Nairobi-Mombasa highway. But Justice Bor’s order required the government to ensure toilets are constructed along the country’s major highways.
Another judge, Mr Oguttu Mboya, has now ordered Transport CS Mr James Macharia to appear before the court in six months to explain the progress in the formulation of the policies as ordered by Justice Bor.
Justice Mboya’s order, dated April 3, seeks to have Mr Macharia report to the court by October and explain efforts made to have clean toilets along major roads. “I now direct that the matter shall be mentioned... on October 3, to confirm to court the extent of progress that shall have been achieved as pertains to the constructions of the toilets and reasonable sanitation facilities on the Kenyan road network towards the realisation of the right to clean and healthy environment along the Kenyan road network,” said Justice Mboya.
The judge issued the order following an application by lawyer Mr Adrian Kamotho, who sought to have Mr Macharia, governors, Kenya National Highways Authority (Kenha), and Kenya Rural Roads Authority (Kura) chief executives jailed for failing to implement the earlier order.
Mr Kamotho claimed the respondents had been served with the court order but failed to comply.
In his reply, Transport PS Prof Paul Maringa claimed the application was only meant to embarrass him, as he was not a party to the case. Prof Maringa said it was governors’ responsibility to implement the judgment.
The PS told the court guidelines were formulated in 2014 regarding the matter, and which have already been circulated to stakeholders for their input. On January 6, 2020, Justice Bor directed the State to come up with a policy that would guarantee every person using Kenya’s roads reasonable access to decent toilets and sanitation facilities.
Justice Bor concurred with Mr Kamotho that there was need to have toilets on the roadsides as most Kenyans went to thickets to answer to calls of nature.
The Environment Court judge said the government had a mandate to ensure Kenyans enjoyed their right to health, while at the same time protecting the environment from activities that were likely to harm it.
“The Constitution obligates the State to eliminate things that are likely to endanger the environment. Such processes include road users relieving themselves in bushes and open spaces along the road. 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,” ruled Justice Bor.
She said roads authorities should also construct pedestrian walkways, and cyclist lanes, and procure services or make arrangements with other entities such as counties, to provide the services to road users.
The judge said Kenha and Kura could seal a deal with counties to construct the amenities.
At one point, Mr Kamotho urged the court to read Deuteronomy 23:12-13, which says: “I designate a place outside the camp where you can go to relieve yourself. As part of your equipment, have something to dig with and when you relieve yourself, dig a hole and cover up your excrement.”
The Bible says you should cover poop and pee so the Lord, who is to protect you, does not see anything unholy that would make him turn away.
Mr Kamotho asked the judge to order that the toilets be free. The judge declined to issue the order, saying the law allowed counties and government to charge a fee for their services.
He said users of highways were forced to respond to the call of nature in the full glare of other commuters while women and girls faced the biggest dilemma and agony when such needs arose. Mr Kamotho said some passengers used paper bags and human waste containers, which were then flung through windows of moving vehicles. “Road users on highways have no way of disposing of human waste from their biological functions. They end up relieving themselves in bushes and on the roadsides, which is inhumane and degrading. Responding to a call of nature is an inevitable human process, which citizens have entirely no control over,” he said.
The lawyer asked the court to order that the toilets be built within 60 days. However, the judge said it would be impractical as such infrastructure needed money that had not been allocated. The case will be mentioned on October 3.