|CHAPTER TWO: SITUATIONAL ANALYSIS AND THEMATIC AREAS OF FOCUS
2.2 Kenya’s Experience with Business and Human Rights [Pages 5-6]
Key business and human rights concerns in Kenya revolve around workplace rights, local communities and business relations, human rights and sustainable land use, human rights and sustainable environment and human rights and small- and medium- sized enterprises.
Pollution is a key environmental challenge in Kenya. It gravely affects the quality of air, land and water. Air pollution from industrial and domestic sources is a leading cause of respiratory diseases such as chronic obstructive pulmonary disease, lung cancer, pulmonary heart disease, and bronchitis thereby adversely impacting the health of citizens. Increased industrial activity witnessed in the recent past, particularly in the extractive, agricultural and manufacturing sectors, have exacerbated the problem of pollution. Toxic and hazardous substances are widely used in Kenya particularly in the agricultural and industrial sectors. Most of these substances end up contaminating soils and water bodies, causing eutrophication and destroying aquatic life (such as fisheries) and biodiversity, including traditional agricultural crops and vegetation. In addition, exposure to these substances is likely to produce chronic and acute effects. Like many other countries in Africa, Kenya is vulnerable to illegal dumping of obsolete and banned toxic and hazardous substances.
2.5. Environmental Protection [Page 10-11]
There is growing global consciousness on the impact of business on the environment. The operations of businesses such as extractives, manufacturing and infrastructure could have adverse impacts on the environment leading to morbidities or mortalities unless effectively regulated. At the international level, the right to a clean environment is enshrined in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the African Charter on Human and Peoples Rights, all of which Kenya is a party to, among others. Various SDGs targets relate to the environment and are underpinned by human rights.
At the domestic level, Article 42 of the Constitution codifies the right to a clean and healthy environment. Article 69 requires the State to ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, including by eliminating processes and activities that are likely to endanger the environment. It also obligates every person, the definition of which includes businesses, to cooperate with state organs and other persons in the protection and conservation of the environment. Article 70 of the Constitution gives any person the right to seek redress in court if the right to a clean and healthy environment has been or is likely to be violated.
The Environmental Management and Coordination Act, 1999 (EMCA) revised in 2015 and the Climate Change Act, 2016 are among the key legal frameworks concerning the protection of the environment. Under the EMCA, Kenya has also adopted the use of the Environmental Impact Assessments (EIA) as a decision making tool to help improve the environmental outcomes of the management decisions. It is mandatory that certain activities that are likely to have significant impacts on the environment are evaluated and measures spelt out to mitigate identified negative impacts prior to their being approved to commence operations. The National Environment Management Authority (NEMA) is the institution responsible for the review and approval of EIAs and Environmental Management Plan (EMP) as well as for regular auditing and monitoring of the same.
The Climate Change Act, 2016 establishes the National Climate Change Council, which is mandated to provide guidelines to private entities on their climate change obligations, including their reporting requirements.
Stakeholders’ consultations during the development of this NAP identified the following concerns related to the impacts of businesses on the environment:
iv. Environmental pollution by business operations, including through discharge of effluent into waterways, air and noise pollution and poor disposal of solid waste, toxic and hazardous substances. These negative impacts compromise the rights to; a clean and healthy environment, health, reasonable standards of sanitation, clean and safe water.
v. Loss of biodiversity due to destruction and encroachment on the natural environment for commercial purposes negatively impacts livelihoods, health and access to clean and safe water for present and future generations.
2.7. Access to Remedy [Page 14-15]
One example of an avenue to access remedy is Section 3 of the Environmental Management and Co-ordination Act which provides that a person may apply to the Environment and Land Court for redress for any denial, violation, infringement of or threat to the person’s right to a clean and healthy environment on the person’s own behalf or on behalf of a group of persons or in the public interest. If the Court finds such a denial, violation, infringement or threat to have occurred, it may make any order it considers appropriate to prevent or stop any act or omission that is deleterious to the environment, compel any public officer to take measures to prevent or discontinue any act or omission deleterious to the environment, require that any on- going activity be subject to an environment audit, compel the persons responsible for environmental degradation to restore the degraded environment as far as practicable to its immediate condition prior to the damage, or provide compensation for any victim of pollution.
Despite these legal protections, the community consultations conducted as part of the NAP process revealed structural and procedural barriers to access to remedy, including:
iii. The cost of litigation is still high for significant sections of individuals and communities. In some lawsuits, for example, it may be necessary to summon experts such as environmental experts to testify on specific issues. Such expertise may be unavailable for the community or where available, may be very expensive for the community to secure;
iv. There have been instances where human rights defenders who have lodged cases against businesses, especially land and environment grievances, have reportedly faced death threats and other forms of intimidation which they hardly report to authorities. Such hostility may instil fear in others who may wish to lodge complaints, robbing communities and individuals of the protection that the law could have offered against business-related abuses;
CHAPTER THREE: POLICY ACTIONS
3.1. Pillar 1: The State Duty to Protect
Policy Actions [Page 21-22]
The Government will:
viii. Sensitise relevant sections of the public especially women and other marginalised and minority groups on –
3.2. Pillar 2: Corporate Responsibility to Respect Human Rights
Policy Actions [Page 18]
The Government will:
3.3. Pillar 3: Access to Remedy
A) State-based judicial and non-judicial remedies [Pages 20-21]
The Government will:
x. Enforce all applicable laws as well as respect internationally recognised human rights laws and standards as they relate to land access and acquisition and natural resources, environment and revenue management;
vi. Improve access to the Human Rights Division of the High Court, Employment and Labour Relations Court and the Environment and Land Court to ensure that they are accessible avenues for remedying business-related human rights abuses. The review shall include an assessment on whether the courts are expeditious and affordable;
4.1. ANNEX 1: SUMMARY OF POLICY ACTIONS