Judicial Remedy – Kenya

CHAPTER ONE: INTRODUCTION
1.2. The National Action Plan Formulation Process

Stakeholders’ Consultation [Page 11]

Given the wide range of business-related human rights concerns, the NBA coupled with the regional consultations were vital in the identification of the recurring thematic areas for the NAP. These are: […] Access to remedy.

Objectives of the NAP [page 11]

The objectives of this NAP are: […]

3) To offer a roadmap of strengthening access to State-based judicial and non-judicial remedies for victims of business-related harm and to promote human rights due diligence by businesses, ensuring that they play their role in the attainment of SDGs in a manner that respects human rights.

 

CHAPTER TWO: THEMATIC AREAS OF FOCUS

2.4. Labour [Page 18]

During the stakeholders’ consultations the following concerns were identified:

6) Lack of effective remedies for victims of labour-related grievances resulting in high prevelance [sic] of unresolved labour-related grievances.

2.5. Access to Remedy [Page 19]

Article 20(1) of the Constitution provides that the Bill of Rights binds all persons, including businesses. Indeed, since the promulgation of the Constitution in 2010, Courts of law have adjudged several businesses to be in violation of human rights and awarded victims varying remedies. Furthermore, there are a number of legislative provisions regulating business conduct to protect those within Kenya’s jurisdiction from business-related human rights violations.

The breach of these and other relevant laws may result in administrative and judicial sanctions. Judicial avenues include the Human Rights Division of the High Court, the Environment and Land Court, and the Employment and Labour Relations Court. Those dissatisfied with the decisions of these courts may appeal at the Court of Appeal with a limited right of further appeal to the Supreme Court. Administrative avenues include tribunals such as, National Environment Tribunal (adjudicates environmental cases including grievances against businesses) and the Rent Restriction Tribunal (adjudicates disputes between tenants and landlords). One may appeal the decisions of these tribunals to the High Court.

Despite these legal protections, the community consultations conducted as part of the NAP process revealed structural and procedural barriers to access to remedy, including:

1) Limited physical access to Courts for people living in rural and remote areas that do not have specialized Courts in nearby towns. This limitation increases the cost of accessing justice for local communities;

2) Despite the possibility of criminal sanctions against directors and managers of companies that may be involved in specific human rights violations that also invite penal sanctions, it was felt that there is a low rate of prosecution and hence the justice system fails to act as a deterrent to such violations;

3) 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 to secure;

4) 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. 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;

5) The capacity of the administrative tribunals to offer non-judicial remedies is often limited by lack of personnel to conduct proper outreach outside of urban centres and the technical capacity to understand emerging and complex issues;

3.3. Pillar 3: Access to Remedy [Page 24]

Policy Actions 

A) State-based judicial and non-judicial remedies [Page 25]

The Government will:

3. provide training and support to the judicial, administrative and oversight organs to be well versed with business obligations in respect of human rights. Priority will be given to the following institutions:

  • the Judicial Training Institute;
  • relevant parliamentary oversight committees;
  • relevant regulatory bodies;
  • Constitutional bodies including the KNCHR
  • Nairobi Center for International Arbitration; and
  • the Law Society of Kenya;

4. improve access to information on available judicial and non-judicial mechanisms involved in the resolution of business-related abuses as a measure to promote access to justice. Such information will be made available in all counties and provided in a manner accessible to vulnerable groups;

5. prioritise access to legal aid for victims of business-related human rights abuses, consistent with the national Legal Aid Act, 2016 and the National Action Plan on Legal Aid;

6. 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, expeditious and affordable avenues for remedying business-related human rights abuses; and

7. increase the capacity of the labour inspection department to handle labour-related grievances, including through:

  • increasing the number of labour inspectors to monitor and enforce compliance with labour standards by businesses, with particular attention to the implementation of mandatory policies to prevent and address sexual harrassment [sic] and violence, payment of minimum wages, equal pay for work of equal value, prohibition of child labour and non-discrimination against women, marginalised groups and minority groups; and
  • taking measures to guarantee the independence of labour inspectors and to ensure that their duties are undertaken with integrity and in a transparent and accountable manner.

 

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

4.1. SUMMARY OF POLICY ACTIONS   

Strategic Objective Policy Actions Responsible Actor(s)
Strategic objective 2:

Enhance understanding of the obligation of business to respect human rights

Provide training and support to the judicial, administrative and oversight organs to be well versed with the current developments towards greater corporate accountability for human rights.  
Strategic Objective 3:

Enhance access to justice for victims of business-related human rights abuses

Training of access to justice players including, judiciary, prosecutors, police  
Improving access to information on available judicial and non-judicial mechanisms involved in the resolution of business-related abuses as a measure to promote access to justice.  
Review the operations of 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 the whether the courts are expeditious and affordable.