Non-judicial Grievance Mechanisms – Kenya
| CHAPTER ONE: INTRODUCTION
Objectives of the NAP [page 11] The objectives of this NAP are: 4) To offer a roadmap of strengthening access to State-based judicial and non-judicial remedies for victims of business-related harm.
CHAPTER TWO: THEMATIC AREAS OF FOCUS 2.6 Labour [Pages 13-14] 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 15] Despite […] legal protections, the community consultations conducted as part of the NAP process revealed structural and procedural barriers to access to remedy, including: 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; and v. 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 [T]he third part relates to Pillar 3 of the UNGPs and contains policy actions to strengthen access to state-based judicial and non-judicial remedies on the one part and thenon-state-based [sic.] grievance handling mechanisms on the other.
3.2. Pillar 2: Corporate Responsibility to Respect Human Rights [Page 18-19] Pillar 2 of the UNGPs states that businesses should respect human rights wherever they are operating. This is achieved by ensuring that they avoid abusing others’ rights and where harm has already occurred, taking steps to remedy the harm. Policy Actions e) Cooperation on access to remedies: Require businesses to cooperate with government agencies and other stakeholders in facilitating remedies for business[1]related human rights violations. This includes actively participating in policy discussions on access to remedy and adopting policies that enhance access to remedy.
3.3 Pillar 3: Access to Remedy [Pages 19-20] 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.
A) State-based judicial and non-judicial remedies [Pages 20-21] Policy Actions The Government will: ii. In line with Article 159 of the Constitution, promote the use of Alternative Dispute Resolution mechanisms in dealing with disputes between businesses and those allegedly harmed by their operations; 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; vii. Increase the capacity of the labour inspection department to handle labour-related grievances, including through:
B) Non-State-Based Grievance Mechanisms [Page 21] Independent of the State’s obligation to ensure access to remedy, businesses should administer grievance handling mechanisms either alone as operational-level grievance mechanisms, or in conjunction with stakeholders or industry associations as part of any industry-wide grievance mechanisms. This is meant to ensure speedy, physically and financially accessible remediation of human rights complaints.
Policy Actions The Government will: 1. Develop and disseminate guidance for businesses on the establishment of credible operational-level grievance mechanisms that are consistent with international standards. Such grievance mechanisms should be responsive to the needs and rights of vulnerable groups such as women, persons with disabilities, children and indigenous persons; 2. Sensitise businesses and those impacted by their activities on the benefits of establishing and utilising credible operational-level grievance mechanisms; 3. Assist community-based organisations working on human rights issues to build their technical capacity to effectively monitor human rights impacts of businesses and advocate for individuals and communities to enforce their right to a remedy for human rights violations..
CHAPTER FOUR: IMPLEMENTATION AND MONITORING ANNEX 1: SUMMARY OF POLICY ACTIONS [Pages 25-26]
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