Independent fact-finding critical to handling human rights grievances

Lately, there have been alarming reports of serious human rights violations allegedly committed by some businesses, especially in the agricultural sector, in their operational spaces in Kenya.

Correspondingly, pressure is mounting on businesses to establish an operational grievance mechanism (OGM) not only to address such grievances but also to adhere to best practices on corporate responsibility to respect human rights and to promote accountability, in accordance with the National Action Plan on Business and Human Rights.

An OGM is established to deal with grievances on human rights violations and other negative impacts, either reactively - for past incidents – or proactively on occurrence, that are reported from within a business by the workforce, or by other stakeholders.

It is purposed to counter impunity by promoting accountability for violations, with assured safeguards to complainants or victims on confidentiality, safety and retaliation. Besides, it is a non-judicial dispute resolution mechanism to ensure that complainants of business-related human rights violations or impacts are accorded an avenue to be heard and access remedy as may be deserved.

Essentially, the focus of an OGM is to support a complainant’s case for violation, even as the perpetrator is held to account, and its broad objective is to enhance either the work environment or co-existential relationships between business enterprises and their stakeholders. To facilitate that cause, an OGM is mandated to gather, assess, evaluate and verify all relevant facts and evidence relating to allegations of human rights violations in an impartial, thorough and rights-respecting manner.

The only ‘proof’ desired from complainants is low-scale evidence, on a balance of probabilities, that the alleged violations occurred and are attributable either directly, or indirectly, or are linked to acts or omissions by business’s operatives, or agents.

The gathering of facts is done through a methodical fact-finding process, which entails investigative verification to establish evidence on the nature, extent and cause of alleged violations or impacts. Verification is critical not only to establish credibility and legitimacy of grievances made by complainants, including grievances refuted by perpetrators, but also to justify recommendations for appropriate remedy options available, such as compensation, guarantee of non-repetition by the perpetrator, apology, restitution, rehabilitation, or even ‘collective remedy’ for group, or community grievances.

Simply put, verification entails validation of alleged facts to establish their authenticity, truthfulness and reliability, and corroboration through witness accounts, or relevant records to support and give credence to those facts.

To cultivate trust and confidence in OGM, complainants’ dignity and rights should be upheld, protected and respected through the fact-finding process. Nonetheless, based on independent fact-finding experience at the leading OGM in the country, whereas some grievances could be valid and true, others could be invalid, or even false. Incidentally, when faced with the negative or ‘no evidence’ reality of verification outcome from gathered facts, some complainants would be satisfied and rest their claims, but some would be defensive and opt to exercise their right of appeal.

However, and as observed by Justice (Rtd) GBM Kariuki in one of his recent appellate decisions, ‘Ascertainment of truth and legitimacy of claims made in grievances is vital for the attainment of access to remedy and fortification of relationships involving stakeholders. It also enhances respect for human rights.’ The point underscored here is that grievances made to the mechanism should of necessity be valid, true, credible and verifiable to support remedial rights of complainants.

That said, responsibility for due diligence remains on Fact-Finders to ensure that all grievances are effectively assessed, evaluated and verified, so that those meeting evidential threshold should be expeditiously progressed and remediated as deseserved.

Finally, to guarantee absolute impartiality, objectivity and integrity of fact-finding on serious human rights violation grievances and the entire grievance-handling process, the task team should exercise operational independence from the mainstream business management, and comprise of individuals with impeccable professional integrity in the promotion of human rights and fidelity to the cause of natural justice.

The writer is an OGM Independent Fact-Finding Consultant.