Business and Human Rights: What’s Next for Kenya’s National Action Plan?

Business and Human Rights: What’s Next for Kenya’s National Action Plan?

The Kenyan Government has made substantial progress in implementing the National Policy and Action Plan (NAP) on Human Rights since its adoption by Parliament in 2015.

Following numerous stakeholder consultations, NAP on Business and Human Rights was finalized in October 2018. However, it is still awaiting cabinet approval.

The policy gives effect to the Bill of Rights under Chapter 4 of the Constitution and commitment to the United Nations Guiding Principles on Business and Human Rights (UNGPs).

The policy seeks to consolidate policy actions by government agencies, businesses, and other relevant stakeholders to further promote the respect of human rights by businesses.

It focuses on five critical thematic issues identified by stakeholders: labour, revenue transparency, environment, land, and access to justice.

“Without deliberate state stewardship, Kenya’s expanding investments may lead to unmitigated violations of human rights,” Attorney-General Paul Kihara Kariuki says.

He adds that Kenya has seen a significant increase in foreign investment and remarkable growth in the domestic private sector and while these developments support sustainable development, they may also adversely affect worker’s rights, communities, and the environment.

“Adverse effects from business activities range from community displacements, child labour, environmental degradation, and detestable working conditions.”

According to the AG, Kenya’s NAP has domesticated the UN Guiding Principles on Business and Human Rights outlining concrete commitments by the Government for addressing adverse business-related human rights impacts under the five focus areas. “It does not create new obligations but restates those already recognized under the Constitution.”

Its importance is seen in its ability to put human rights in the context of business-citizen interface and make human rights violations done by businesses visible.

Kenya’s 3rd Report on the Universal Periodic Review Process, it states that it is “Strengthening the capacity of public officers to effectively deliver on their human rights obligations” in collaboration with the Kenya National Commission on Human Rights (KNCHR) continues to provide and mainstream human rights education and training in the public sector.

However, the report says that “Kenya has faced some difficulties in the collection of data to effectively monitor the implementation of its human rights obligations.”

“To this end, the Kenya Bureau of Statistics and the KNCHR have begun the process of formulating guidelines on the collection of data under SDG 16 on Peace, Justice and Strong Institutions.”

According to the UN Guiding Principles on Business and Human Rights, the responsibility to respect human rights requires that business enterprises “Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.”

The principles are anchored on three pillars:

Pillar 1: Describes the duty of the State to protect those under its jurisdiction from human rights violations whether committed by public or private sectors. This can be achieved through legislation and/or administrative measures.

Pillar 2: Spells out the responsibility of businesses to respect human rights by ensuring that due diligence is exercised in their operations to avoid causing harm to individuals or communities.
It further calls on businesses to take positive measures to enhance the enjoyment of human rights.

Pillar 3: Emphasizes the responsibility of States and the Corporate sector to ensure that victims of human rights violations have access to effective remedies. This can be achieved through Judicial and non-judicial grievance mechanisms.

For Kenya, the NAP will bring more clarity to the relevance of human rights for business, emphasizes practical solutions and proposes the development of useful tools and guidance materials.

It will facilitate the identification of approaches that have been recognized by a number of businesses and stakeholders as being good for human rights.

“Embracing the Action Plan is in keeping with the goal of showing that advancing human rights is not just about managing risks and meeting standards and expectations but also about realizing new opportunities for sustainable growth and development,” reads the June 2019 NAP Executive Summary.