Judicial Remedy – Kenya

2.6 Labour [Page 13]

During the stakeholders’ consultations the following concerns were identified:

6)    Lack of effective remedies for victims of labour-related grievances resulting in high prevalence of unresolved labour-related grievances. A weak enforcement mechanism, in particular inadequate number of state labour inspectors and the lack of effective operational level grievance mechanisms were also cited as contributing factors.

2.7 Access to Remedy [Page 14]

The Constitution of Kenya, 2010 adopts international law as part of the domestic law. In international human rights law, Kenya is obligated to protect those under its jurisdiction against human rights violations, including by third parties such as businesses.

SDG 16.3 urges states to ‘promote the rule of law at the national and international levels and ensure equal access to justice for all’. Additionally, SDG 16.6 calls for the development of ‘effective, accountable and transparent institutions at all levels’.

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 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. Protection against discrimination on the ground of HIV/AIDS status, for example, covers those in employment. The same applies to the protection of discrimination against persons with disabilities, women and marginalised groups.

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 to 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.

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:

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 for the community 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 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; and
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.

Most businesses have a relatively low understanding of their human rights responsibilities resulting in lack of engagement with employees, local communities and other stakeholders on how to ensure that they respect human rights and provide a remedy for violations. Business associations stated that they lack proper guidance on establishing credible operational-level grievance handling mechanisms.

CHAPTER THREE: POLICY ACTIONS

3.3. Pillar 3: Access to Remedy [Page 19]

Access to an effective remedy guarantees victims of business-related human rights abuse with predictable avenues for complaints, adjudication of their grievances, an opportunity for the other party to present its case and a fair remedy based on the merits of the case. Additionally, it ensures that remedies are relevant and proportionate to the abuses, including orders to cease ongoing abuses.

According to the UNGPs, State-based judicial and non-judicial mechanisms should be the primary avenue for accessing remedies by victims of corporate abuses. However, victims should also have access to operational-level grievance handling mechanisms established by businesses, where workers, local communities and civil society advocates acting on behalf of individuals and communities negatively impacted by businesses may lodge their complaints and receive a just outcome such as compensation, guarantee of non-repetition by the offender, apology, restitution and rehabilitation.

Policy Actions 

A) State-based judicial and non-judicial remedies [Page 20]

The Government will:

iii. Provide training and support to the judicial, administrative and oversight organs on 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;

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

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

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

vi.      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

ANNEX 1: SUMMARY OF POLICY ACTIONS [Page 25]