Kenyan Businesses Told to Rethink Human Rights, Not About Corporate Social Responsibility

Business enterprises in Kenya need to shoulder the responsibility of protecting human rights and not to be viewed as an additional burden to them.

Speaking at the Bloggers Association of Kenya (BAKE) webinar on Business and Human rights, Mercy Mutemi, a digital rights lawyer of MS law said on a day to day basis, businesses interact with individuals and “Beyond providing a service, businesses have an obligation to advance human rights.”

“Businesses should start rethinking about human rights. It is not about corporate social responsibility,” she empasised adding that, “It is a fact, business needs come first, then human rights, but from a digital human rights perspective, human rights must come first and be by design.”

Claris Kariuki, Senior State Counsel in the Office of the Attorney General and the Department of Justice clarified that human rights are ‘actually’ good for business and not an additional burden to them.

According to Claris, Kenya’s National Policy and Action Plan (NAP) on Human Rights has domesticated the UN Guiding Principles on Business and Human Rights. This is under Chapter 4 of the Constitution which outlines concrete commitments by the Government in addressing adverse business-related human rights impacts.

The NAP gives focus to five areas: labour, revenue transparency, environment, land, and access to justice.

Implementation of Kenya’s NAP is something that will require a lot of support. “A lot of work is still needed going forward. The NAP already reinforces what currently exists,” observed Claris.

Liz Orembo, a KICTANet associate, specialised in tech public policy analysis and advocacy also re-empasised that “Businesses need to take a proactive approach to humanise their processes within the existing laws.”

Both panelists agreed that the main challenge was not with the laws or policies in place but the implementation of the same.

Some of the laws in place include the Data Protection Law, The Consumer Protection Law, and the Kenyan constitution. 

For instance, Claris noted that when it comes to the Small Medium Enterprises, and some businesses, they are still not aware of the UN Guiding Principles on Business and Human Rights.

“It is a human problem…Do unto others what you would expect on the vice versa. As a result, SMEs need to adhere to that norm. It needs to be an ingrained culture from day one.”

Mutemi on the other hand said it is not easy for an SME to survive litigation and as a result, “For them, the most important is a human rights centric base for any SME when they start.”

She argues that we should approach human rights on how we approach cyber security. “Invest in knowledge. Capacitated the SMEs at the inception point.It is an investment they have to make.”

“Why do SMEs exist? To respond to this, SMEs need to get it right from the start rather than at a  different level during their growth. As businesses make money, it is also prudent they protect the rights of the consumers,” Orembo said.

Claris further said businesses should self-report on violations happening internally as part of human rights due diligence. NAP calls for Human Rights Assessment from businesses.

According to the UN Guiding Principles Reporting Framework, human rights due diligence is:

“An ongoing risk management process…in order to identify, prevent, mitigate and account for how [a company] addresses its adverse human rights impacts. It includes four key steps: assessing actual and potential human rights impacts; integrating and acting on the findings; tracking responses; and communicating about how impacts are addressed.”

Kenya’s NAP on Business and Human Rights was finalized in October 2018. However, it is still awaiting cabinet approval. Claris expressed optimism that it will be approved in 2020.