The last two to three decades have witnessed an intensification of debate on the role and responsibilities of business enterprises in regard to human rights at both national and international levels. This discussion arose due to widespread exposure of business complicity in human rights violations.
At the national level, civil society has worked tirelessly to expose business complicity in human rights violations in the cut-flower sector, the Export Processing Zones (EPZs), the tea, tobacco and pineapple plantations in Kericho, Thika and Makuyu among other sectors of our economy.
In addition to the work done by civil society, the Kenya National Commission on Human Rights (KNCHR), a statutory body, has carried out a public inquiry into allegations of human rights violations in Magarini, Malindi, where allegations of workers’ rights violations and environmental pollution by salt harvesting firms were reported.
The first week of June marked the start of the United Nations (UN) Human Rights Council’s 17th Session which is being held in New York, USA. Among the main agenda items for discussion are guiding principles for operationalisation of the UN “Protect, Respect, Remedy” Framework that clarifies the role and responsibilities of States and business enterprises.
The need to develop an international human rights framework was born out of allegations of business complicity in human rights violations. The first attempt to develop such a standard was the UN draft Norms on the Responsibilities of Transnational Corporations and other business enterprises with regard to human rights by the Sub-Commission on the Promotion and Protection of Human Rights in August 2003.
Relevant for business
The draft Norms put together international human rights standards that are still relevant for business, including issues related to labour, health, the environment, security and grounds for non-discrimination. The draft Norms was, however, rejected by the UN Commission on Human Rights because it proposed to give businesses the same type of obligations preserved for States and thus had no legal standing. Despite the rejection, former UN Secretary-General Kofi Annan appointed Prof John Ruggie to the position of Special Representative on the issue of Human Rights and Transnational Corporations (TNCs) and other business enterprises. Prof Ruggie was mandated to identify and clarify standards of corporate responsibility and accountability and to expound on the role of States in the effective regulation of businesses.
He presented to the Human Rights Council in 2008 the “Protect, Respect, Remedy” Framework which was based on three pillars — the State’s duty to protect against human rights violations including by third parties such as business enterprises; second, the corporate responsibility to respect human rights which necessitates due diligence and that business should “first do no harm”; and lastly, access to remedial mechanisms — judicial and non judicial — by victims of corporate related human rights violations.
The framework was unanimously endorsed and the Human Rights Council further mandated Prof Ruggie to develop practical recommendations on how to operationalise it. This mandate led to the development of the guiding principles which are now before the council for adoption.
This UN framework and the guiding principles are of particular interest to the commission because they bestow on the international community an acceptable human rights framework that explains the roles and responsibilities of States, business enterprises and other relevant actors including national human rights institutions. Most importantly, the framework offers the Government, business enterprises, and ordinary Kenyans a benchmark to ensure that constitutional guarantees placed on business enterprises in relation to the Bill of Rights are implemented.
Under Article 20 (1), all persons, including business enterprises are bound to rights and fundamental freedoms spelt out in the Constitution.
The Constitution provides judicial remedial measures to persons for perceived infringement or threatened enjoyment of rights and fundamental freedoms guaranteed in the Constitution under Article 22, while Article 23 empowers the High Court to hear and determine human rights violations related cases brought before it, including corporate related human rights violations, for redress.
Due to these constitutional provisions, Kenyan business enterprises need to join the world community in thinking broadly on how their daily business practices may violate human rights. This can take the form of employment practices that are discriminatory in nature; how production processes impact on workers, communities and the environment.
The UN framework and its guiding principles initiate discussions on what measures businesses need to put in place to ensure their operations do not have adverse impacts on human rights. Other measures that can be instituted include carrying out due diligence that aims to identify, prevent, mitigate and account for how businesses address their adverse human rights impacts.
On the other hand, the Government is bound by the Constitution under Article 21 to observe, respect, protect, promote and fulfil rights and fundamental freedoms.
The Government should ensure that as the Company’s Bill undergoes review, clauses should be incorporated that aim at requiring business enterprises to respect human rights.
The Government should periodically assess the adequacy of such laws and address any gaps that may be identified; to ensure that the laws and policies that regulate business enterprises do not constrain but enable the corporate responsibility to respect human rights.
Such policies should include Kenya’s trade and investment policies and agreements. This guidance should include aspects that require businesses to pay special attention to prevent violations of human rights where their operations affect marginalised and vulnerable groups such as women, persons with disabilities, pastoral communities, and indigenous people.
Kimathi is a commissioner and Kabiru a senior human rights officer with the Kenya National Commission on Human Rights