Non-judicial Grievance Mechanisms – Kenya

CHAPTER ONE: INTRODUCTION

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 19]

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. A weak enforcement mechanism, in particular inadequate number of state labour inspectors and the lack of effective operational level grievance mechanisms were cited as contributing factors.

2.5. Access to Remedy [page 20]

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

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;

Business associations stated that they lack proper guidance on establishing credible operational-level grievance mechanisms.

 

CHAPTER THREE: POLICY ACTIONS

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights [Page 23-24]

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

The Government will require businesses to cooperate with government agencies and other stakeholders in facilitating remedies for business-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 2: Access to Remedy

Policy Actions 

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

2. in line with Article 159 of the Constitution, promote the use of Alternative Dispute Resolution mechanisms in dealing with disputes between businesses and those harmed by their operations.

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

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.
     

B) Non-State-Based Grievance Mechanisms [Page 26]

Independent of the State’s obligation to ensure access to remedy, businesses should administer grievance mechanisms alone, or in conjunction with stakeholders or industry associations, either by having grievance mechanisms where they are based, referred to as operational-level grievance mechanisms, or by being 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 i.e. women, persons with disabilities, children and indigineous [sic] persons;

2. sensitise businesses and those impacted by their activities on the benefits of establishing credible operational-level grievance mechanisms; and

3. assist community-based organisations working on human rights issues to build their technical capacity to monitor human rights imapcts [sic] of businesses effectively and advocate for individuals and communities to enforce their right to a remedy for human rights violations.

 

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

4.1. SUMMARY OF POLICY ACTIONS [Annex]

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

Enhance understanding of the obligation of business to respect human rights

Develop and disseminate guidance for businesses on the establishment credible operational-level grievance mechanisms that are consistent with international standards.  
Build the understanding by businesses and those impacted by their activities on the benefits of establishing credible operational-level grievance mechanisms.

 

 
Strategic Objective 3:

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

Require businesses to cooperate with government agencies and other stakeholders in facilitating remedies for business-related human rights violations. This includes actively participating in policy discussions on access to remedy and adopting policies that enhance access to remedy  
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.  
  • Support the KNCHR audit environmental impact of business operations. This will be in due regard to the fact that the right to a clean and healthy environment is now enshrined in the Kenya Constitution’s Bill of Rights.
  • Improve their technical capacity to handle grievances support them to effectively play their regulation and law enforcement roles in relation to the environment