Kenya

2.4 Revenue Transparency [page 9]

[T]he NAP consultations identified several challenges that affect revenue transparency:

1. Corruption in the process of revenue collection and the management of public revenue. Stakeholders identified corruption in the business licensing process, the process of tax collection and public procurement attributed to both public and private sector actors.
2. Lack of disclosure of contracts particularly those that have significant economic and social consequences.
3. Lack of transparency in administration and management of revenues from the exploitation of natural resources including from mining and oil and gas activities.
4. The absence of legal beneficial ownership disclosure aids the veil of secrecy in determining who owns and controls business entities inhibiting law enforcement’s ability to ‘follow the money’.

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect

Policy Actions [Page 21]

The Government will:

x.    Finalise the development of regulations to the Access to Information Act to facilitate disclosure of contracts, including those that have a significant economic and social impact in the country and join the Extractives Industries Transparency Initiative (EITI) for the facilitation of revenue transparency;

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights

Policy Actions [Page 18-19]

b) Human Rights Policy commitments

The Government will:

i.     Require businesses to adopt human rights policies, including taking measures to ensure their operations respect human rights, including by providing access to a remedy for human rights violations;

d) Reporting:

Enforce the requirement for businesses to prepare non-financial reports in line with the Companies Act, 2015, and encourage proactive disclosure of their impacts on human rights and the mitigation measures they are taking in this regard.

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 –

1. Land laws, including resettlement and compensation frameworks;
2. Labour laws and the rights of migrant workers; and
3. Environmental laws and standards;

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights

Policy Actions [Page 18]

a) Training

The Government will:

1. develop and disseminate guidance for businesses on their duty to respect human rights and the operationalisation of this duty in the Kenyan context, including the implications of their operations on the environment … to promote responsible labour practices and inclusivity.

3.3. Pillar 3: Access to Remedy

Policy Actions 

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 

2.3. Land and Natural Resources [Page 7]

The country has made strides in the legal and policy protection of women’s property rights as relates to ownership, inheritance, management and disposal. The 2009 National Land Policy amongst other provisions cites the need to protect women’s right to inherit land and the land rights of widows and divorced women. It also distinguishes the inheritance rights between married and unmarried women directing the Government to secure the rights of unmarried daughters. The Matrimonial Property Act, 2013 provides that a married woman has equal rights as a maried [sic.] man to acquire, administer, hold, control or dispose of property whether movable or immovable. The Act further provides that ownership of matrimonial property vests in the spouses according to their contribution, either monetary or non monetary [sic.], in its acquisition and upon divorce should be divided between the spouses. The Marriage Act, 2014 provides that parties to a marriage have equal rights and obligations at the time of the marriage, during and at the dissolution of the marriage. However despite these laws, there are still obstacles including cultural traditions, historical injustices and lack of awareness that inhibit women from accessing and owning their fair share of property and attendant rights.

2.6. Labour [Page 12-14]

It is imperative that the labour market is regulated to ensure compliance with constitutional, legal and international standards. Several SDGs and ILO core conventions cover various aspects of working conditions including decent work and economic growth, reduction of inequality, quality education and gender equality. The SDG targets include: […] 2.3 (double the agricultural productivity and incomes of small- scale food producers, in particular women, […]); 4.5 (eliminate gender disparities in education and ensure equal access to all levels of education and vocational training for the vulnerable, including persons with disabilities, indigenous peoples and children in vulnerable situations); 5.2 (eliminate all forms of violence against all women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation); and 8.5 (achieve full and productive employment and decent work for all women and men, including for young people and persons with disabilities, and equal pay for work of equal value). Others are 8.8 (protect labour rights and promote safe and secure working environments for all workers, including migrant workers, in particular women migrants, and those in precarious employment), and 16.2 (end abuse, exploitation, trafficking and all forms of violence against and torture of children).

Other constitutional rights related to labour include Article 30 which prohibits slavery, servitude and forced labour and Article 27 which guarantees equality and freedom from discrimination, specifically including the equal rights of women and men to opportunities in the economic sphere and the dictate that no person shall discriminate against another person directly or indirectly on grounds including sex, health status, religion, ethnic origin, disability and social origin.

Several statutes give effect to these labour-related Constitutional guarantees, including those dealing with labour disputes, working conditions and protection against discrimination.

During the stakeholders’ consultations the following concerns were identified:

1) Sexual harassment is widespread and underreported, with women being the majority of victims. Fear of job loss is a major factor in the reluctance to report. Furthermore there is low enforcement of the Sexual Offences Act, 2006

3) Low level of awareness on labour rights among workers (mostly women in low income or low skilled jobs) and employers;

5) Lack of publicly available statistics disaggregated by sex and other vulnerabilities that could be useful in addressing sex and other

forms of discrimination in the workplace

2.7. Access to Remedy [Page 14]

[…] [t]here 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..

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [Page 16-17]

Policy Actions

The Government will:

ii. Introduce a requirement for conducting Human Rights due diligence including the particular impacts on gender before approval of licences/permits to businesses;

x. Sensitise relevant sections of the public especially women and other marginalised and minority groups on –

1. Land laws, including resettlement and compensation frameworks;
2. Labour laws and the rights of migrant workers; and
3. Environmental laws and standards;

xi. Develop procedural guidelines […that…] will ensure and safeguard the participation of women, persons living with disabilities, youth, children and other marginalised groups;

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights 

Policy Actions [Page 18-19]   

a) Training: Develop and disseminate guidance for businesses on their duty to respect human rights and the operationalisation of this duty in the Kenyan context, including the implications of their operations on the environment, gender, human rights defenders, minorities, persons living with disabilities, marginalised and other vulnerable groups to promote responsible labour practices and inclusivity.

3.3. Pillar 3: Access to Remedy

Policy Actions [Page 25]

A) State-based judicial and non-judicial remedies

The Government will:

vii. 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,

ANNEX 1: SUMMARY OF POLICY ACTIONS [Page 23]   

ANNEX 2: LEGISLATION PROPOSED FOR ENACTMENT OR AMENDMENT [Page 28]

Enhance understanding of the obligation of business to respect human rights

CHAPTER TWO: SITUATIONAL ANALYSIS AND THEMATIC AREAS OF FOCUS

2.3 Land and Natural Resources [Pages 7-8]

Additionally, Kenya has various laws and policies to ensure that communities hosting extractives projects benefit through revenues, employment of local people and utilisation of local goods and services.

The NAP consultations identified the following concerns related to land, natural resource development and business:

1. Lack of knowledge of existing compensation and resettlement framework for the voluntary and compulsory acquisition of land;
2. Lack of guidance on community consultations in the context of natural resources governance resulting in inadequate participation of local communities in decision making;
3. Land adjudication has not been undertaken in some areas where businesses are operating or propose to operate, complicating decisions on who the rightful parties to be consulted and compensated are;
4. The Mining Act has not been fully operationalised with regards to the sharing of revenues, effectively denying local communities impacted by the operations of mining companies the rights and protections under the law;
5. Cultural and historical barriers to access to land by women, minorities and marginalised groups such as indigenous persons. These barriers limit these groups’ participation in and decision-making power over land-related issues; and
6. Lack of sustainable benefits for host communities from the exploitation of natural resources despite the constitutional imperative for equitable sharing of benefits.

2.4. Revenue Transparency [Pages 9-10]

Despite the above efforts, the NAP consultations identified several challenges that affect revenue transparency:

iii.    Lack of transparency in administration and management of revenues from the exploitation of natural resources including from mining and oil and gas activities.

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [Page 18]

The Government will:

x.      Finalise the development of regulations to the Access to Information Act to facilitate disclosure of contracts, including those that have a significant economic and social impact in the country and join the Extractives Industries Transparency Initiative (EITI) for the facilitation of revenue transparency;

3.2. Pillar 2: Corporate Social Responsibility to Respect Human Rights

Policy Actions

b) Human Rights Policy commitments

ii.    Encourage recruitment agencies to provide any required repatriation, legal and psychological support to migrant workers who have suffered or been subjected to abuse abroad;

CHAPTER FOUR: IMPLEMENTATION AND MONITORING [Page 23]

4.1. ANNEX 1: SUMMARY OF POLICY ACTIONS

Enhance existing policy, legal, regulatory and administrative framework for ensuring respect of human rights by business through legal review and development of specific guidance for business

Take appropriate measures to promote safe and fair labour migration including agreements on free exchange of information, and more stringent regulation of employment agencies and explore measures for providing legal and psychosocial support services to victims of labour abuse.

2.6 Labour [Page 12]

Article 41 of the Constitution of Kenya guarantees every person the right to fair labour practices, and confers specific rights on workers, employers and trade unions and employers’ organisations. Every worker is entitled to fair remuneration, reasonable working conditions, the right to join and participate in the activities of a trade union and go on strike as a means of advocating for their labour-related rights. Employers are entitled to form and join employers’ organisations and participate in such organisations’ programs. Trade unions and employers’ organisations are entitled to organise and form new or join existing federations.

CHAPTER TWO: SITUATIONAL ANALYSIS AND THEMATIC AREAS OF FOCUS

2.2 Kenya’s Experience with Business and Human Rights [Pages 5-6]

Under the social pillar of the Vision 2030, Kenya aims to build a just and cohesive society with social equity in a clean and secure environment. The Key sectors under the social pillar namely: […] gender […].

2.3 Land and Natural Resources [Page 8]

The country has made strides in the legal and policy protection of women’s property rights as relates to ownership, inheritance, management and disposal. The 2009 National Land Policy amongst other provisions cites the need to protect women’s right to inherit land and the land rights of widows and divorced women. It also distinguishes the inheritance rights between married and unmarried women directing the Government to secure the rights of unmarried daughters. The Matrimonial Property Act, 2013 provides that a married woman has equal rights as a maried [sic.] man to acquire, administer, hold, control or dispose of property whether movable or immovable. The Act further provides that ownership of matrimonial property vests in the spouses according to their contribution, either monetary or non monetary, in its acquisition and upon divorce should be divided between the spouses. The Marriage Act, 2014 provides that parties to a marriage have equal rights and obligations at the time of the marriage, during and at the dissolution of the marriage. However despite these laws, there are still obstacles including cultural traditions, historical injustices and lack of awareness that inhibit women from accessing and owning their fair share of property and attendant rights. 

2.6 Labour [Pages 12-13]

It is imperative that the labour market is regulated to ensure compliance with constitutional, legal and international standards. Several SDGs and ILO core conventions cover various aspects of working conditions including decent work and economic growth, reduction of inequality, quality education and gender equality. The SDG targets include: […] 3 (double the agricultural productivity and incomes of small- scale food producers, in particular women, […]); 4.5 (eliminate gender disparities in education and ensure equal access to all levels of education and vocational training for the vulnerable, including persons with disabilities, indigenous peoples and children in vulnerable situations); 5.2 (eliminate all forms of violence against all women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation); and 8.5 (achieve full and productive employment and decent work for all women and men, including for young people and persons with disabilities, and equal pay for work of equal value). Others are 8.8 (protect labour rights and promote safe and secure working environments for all workers, including migrant workers, in particular women migrants, and those in precarious employment), and 16.2 (end abuse, exploitation, trafficking and all forms of violence against and torture of children).

During the stakeholders’ consultation the following concerns were identified:

1. Sexual harassment is widespread and underreported with women being the majority of victims- fear of job loss being a major factor in the reluctance to report. Furthermore there is low enforcement of the Sexual Offences Act, 2006;
2. Lack of access to maternity and paternity leave. While the law provides and protects both maternity and paternity leave, not all workers in the private sector are able to access this benefit for fear of job loss. Once again, enforcement of the law in this respect remains weak;
3. Low level of awareness on labour rights among workers (mostly women in low income or low skilled jobs) and employers;
4. […]
5. Lack of publicly available statistics disaggregated by sex and other vulnerabilities that could be useful in addressing sex and other forms of discrimination in the workplace; […]

2.7 Access to Remedy [Pages 13-15]

[…] [T]here 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.

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [Pages 16-18]

Policy Actions

The Government will:

i.    Introduce a requirement for conducting Human Rights due diligence including the particular impacts on gender before approval of licences/permits to businesses;

vii.  Sensitise relevant sections of the public especially women and other marginalised and minority groups on –

1. Land laws, including resettlement and compensation frameworks;
2. Labour laws and the rights of migrant workers; and
3. Environmental laws and standards;

viii.  Develop procedural guidelines for use by businesses, individuals and communities in their negotiations for land access and acquisition. These guidelines will ensure and safeguard the participation of women, persons living with disabilities, youth, children and other marginalised groups;

xi.     Strengthen leverage in using public procurement to promote human rights. This will involve the review of existing public procurement policies, laws and standards and their impacts with due regard to the state’s human rights obligations including women’s rights as part of the criteria; and,

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights [Page 18-19] 

Policy Actions

a) Training: Develop and disseminate guidance for businesses on their duty to respect human rights and the operationalisation of this duty in the Kenyan context, including the implications of their operations on the environment, gender, human rights defenders, minorities, persons living with disabilities, marginalised and other vulnerable groups to promote responsible labour practices and inclusivity.

c) Human rights due diligence: Require businesses to identify their human rights impacts including through conducting comprehensive and credible human rights impact assessments before they commence their operations and continuously review the assessment to ensure that they prevent, address and redress human rights violations. Such impact assessment should involve meaningful consultation with potentially affected groups and other relevant stakeholders and include particular gendered impacts.

3.3. Pillar 3: Access to Remedy

A) State-based judicial and non-judicial remedies [Page 21]

Policy Actions

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

1. • 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; […]

B) Non-State-Based Grievance Mechanisms [Page 21]

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

CHAPTER FOUR: IMPLEMENTATION AND MONITORING [Page 22]

To ensure that the measures proposed in this NAP are implemented, there shall be a NAP steering committee overseen by the Department of Justice and the Kenya National Commission on Human Rights. The Implementing Committee will consist of representatives from the following institutions:

[…]

7. Three (3) Civil Society Organizations Representatives of persons living with disabilities, women and indigenous persons

[…]

15. National Gender & Equality Commission

[…]

ANNEX 1: SUMMARY OF POLICY ACTIONS [Page 23]

ANNEX 2: LEGISLATION PROPOSED FOR ENACTMENT OR AMENDMENT

2.3 Land and Natural Resources [Page 7]

The NAP consultations identified the following concerns related to land, natural resource development and business:

[…]

2.    Lack of guidance on community consultations in the context of natural resources governance resulting in inadequate participation of local communities in decision making;

2.7 Access to Remedy [Pages 13-14]

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

3.1. Pillar 1: The State Duty to Protect [Page 16-18]

States are expected to explicitly set out expectations that all businesses in their jurisdictions, including state-owned businesses and those businesses with which they engage in commercial transactions, respect human rights through policies, laws and guidance.

Policy Actions

The Government will:

viii.     Work with stakeholders to develop a natural resource revenue management policy and regulatory framework for administering and managing natural resource revenue paid to host communities. This framework should seek to promote equity, inclusivity and community decision-making and will include training to enhance the capacity of communities to manage their affairs. It will also serve to guide the operationalisation of mining revenue as envisaged by the Mining Act, 2016; […]

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights [Pages 18-19] 

The current voluntary initiatives established and adopted by business associations on different human rights issues do not have strict compliance and reporting mechanisms. They therefore fail to offer businesses that have ascribed to them the required guidance and supervision to ensure that their operations respect human rights. There is no mandatory requirement for human rights due diligence. Businesses, including state-owned enterprises, have not embraced the practice of engaging those whose rights are most likely to be impacted by their operations in any human rights due diligence.

Policy Actions

a) Training: Develop and disseminate guidance for businesses on their duty to respect human rights and the operationalisation of this duty in the Kenyan context, including the implications of their operations on the environment, gender, human rights defenders, minorities, persons living with disabilities, marginalised and other vulnerable groups to promote responsible labour practices and inclusivity.

3.3. Pillar 3: Access to Remedy [Page 21]

B) Non-State-Based Grievance Mechanisms

Policy Actions

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; […]

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

ANNEX 1: SUMMARY OF POLICY ACTIONS [Pages 23-25]

2.7. Access to Remedy [Pages 14-15]

Despite these 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

CHAPTER THREE: POLICY ACTIONS

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights [Pages 18-19]

Policy Actions

c) Training: Develop and disseminate guidance for businesses on their duty to respect human rights and the operationalisation of this duty in the Kenyan context, including the implications of their operations on the environment, gender, human rights defenders, minorities, persons living with disabilities, marginalised and other vulnerable groups to promote responsible labour practices and inclusivity.t

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights 

Policy Actions [Page 19]

c) Human rights due diligence: Require businesses to identify their human rights impacts including through conducting comprehensive and credible human rights impact assessments before they commence their operations and continuously review the assessment to ensure that they prevent, address and redress human rights violations. Such impact assessment should involve meaningful consultation with potentially affected groups and other relevant stakeholders and include particular gendered impacts.

3.3. Pillar 3: Access to Remedy

B) Non- State-Based Grievance Mechanisms [Page 21]

Policy Actions

The Government will:

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

2.3 Land and Natural Resources [Page 12-14]

International human rights law guarantees against arbitrary deprivation of property and provides a standard of conduct to be followed in case of evictions. Furthermore, there are additional protections for indigenous people in recognising the unique importance, cultural and spiritual values that they attach to their lands, territories and natural resources. These guarantee land rights for indigenous people and provide protections against displacement from their lands. They also provide for consultation and consent to development projects. Several SDGs targets relate to land and natural resources.

The NAP consultations identified the following concerns related to land, natural resource development and business:

5. Cultural and historical barriers to access to land by women, minorities and marginalised groups such as indigenous persons. These barriers limit these groups’ participation in and decision-making power over land-related issues; […]

2.6 Labour [Page 12]

It is imperative that the labour market is regulated to ensure compliance with constitutional, legal and international standards. Several SDGs and ILO core conventions cover various aspects of working conditions including decent work and economic growth, reduction of inequality, quality education and gender equality. The SDG targets include: […] 2.3 (double the agricultural productivity and incomes of small- scale food producers, in particular […] indigenous peoples,[…] ); 4.5 (eliminate gender disparities in education and ensure equal access to all levels of education and vocational training for the vulnerable, including […], indigenous peoples […]);

CHAPTER THREE: POLICY ACTIONS

3.3. Pillar 3: Access to Remedy

B) Non-State-based Grievance Mechanisms [Page 21]

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;

CHAPTER FOUR: IMPLEMENTATION AND MONITORING [Page 22]

To ensure that the measures proposed in this NAP are implemented, there shall be a NAP Steering Committee overseen by the Department of Justice and the Kenya National Commission on Human Rights. The Implementing Committee will consist of representatives from the following institutions:

7.     Three (3) Civil Society Organizations Representatives of persons living with disabilities, women and indigenous persons

Enhance existing policy, legal, regulatory and administrative framework for ensuring respect of human rights by business through legal review and development of specific guidance for business

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]

2.3 Land and Natural Resources [Page 12-14]

Land is a prerequisite for the enjoyment of economic, social and cultural rights relating to an adequate standard of living, housing, food and natural resource benefits sharing. The Constitution states that “all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals”. However it is often a source of conflict due to population pressure, rapid urbanisation, environmental degradation, land-intense large-scale projects such as mining, oil and gas and commercial agriculture, all of which result in competition for available productive land.

International human rights law guarantees against arbitrary deprivation of property and provides a standard of conduct to be followed in case of evictions. Furthermore, there are additional protections for indigenous people in recognising the unique importance, cultural and spiritual values that they attach to their lands, territories and natural resources.2 These guarantee land rights for indigenous people and provide protections against displacement from their lands. They also provide for consultation and consent to development projects. Several SDGs targets relate to land and natural resources3.

Kenya has a relatively progressive constitutional and statutory framework for the ownership, management and access to land and natural resources found within her boundaries. The Constitution provides that land, whether public, private or communal, shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable. The Constitution also guarantees the right to property, and the protection from arbitrary deprivation of one’s property including land. In addition to the Constitution, the Land Act, 2012 deals with public land under Article 62 of the Constitution, private land under Article 64 of the Constitution, and community land under Article 63 of the Constitution. Further, the Community Land Act, 2016 deals more substantively with community land which is vested in and held by communities identified on the basis of ethnicity, culture or similar community interest. All matters relating to compulsory land acquisition, including access to land for business purposes, are governed by the Land Act, 2012.

The country has made strides in the legal and policy protection of women’s property rights as relates to ownership, inheritance, management and disposal. The 2009 National Land Policy amongst other provisions cites the need to protect women’s right to inherit land and the land rights of widows and divorced women. It also distinguishes the inheritance rights between married and unmarried women directing the Government to secure the rights of unmarried daughters. The Matrimonial Property Act, 2013 provides that a married woman has equal rights as a maried [sic.] man to acquire, administer, hold, control or dispose of property whether movable or immovable. The Act further provides that ownership of matrimonial property vests in the spouses according to their contribution, either monetary or non monetary, in its acquisition and upon divorce should be divided between the spouses. The Marriage Act, 2014 provides that parties to a marriage have equal rights and obligations at the time of the marriage, during and at the dissolution of the marriage. However despite these laws, there are still obstacles including cultural traditions, historical injustices and lack of awareness that inhibit women from accessing and owning their fair share of property and attendant rights.

Furthermore, the Constitution guarantees access to information, community empowerment and inclusion in decision-making and benefit sharing from exploitation of natural resources. Additionally, Kenya has various laws and policies to ensure that communities hosting extractives projects benefit through revenues, employment of local people and utilisation of local goods and services.

The NAP consultations identified the following concerns related to land, natural resource development and business:

1. Lack of knowledge of existing compensation and resettlement framework for the voluntary and compulsory acquisition of land;
2. Lack of guidance on community consultations in the context of natural resources governance resulting in inadequate participation of local communities in decision making;
3. Land adjudication has not been undertaken in some areas where businesses are operating or propose to operate, complicating decisions on who the rightful parties to be consulted and compensated are;
4. The Mining Act has not been fully operationalised with regards to the sharing of revenues, effectively denying local communities impacted by the operations of mining companies the rights and protections under the law;
5. Cultural and historical barriers to access to land by women, minorities and marginalised groups such as indigenous persons. These barriers limit these groups’ participation in and decision-making power over land-related issues; and
6. Lack of sustainable benefits for host communities from the exploitation of natural resources despite the constitutional imperative for equitable sharing of benefits.

2.7 Access to Remedy [Page 14-15]

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.[…]

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.[…]

Despite these 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

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [Page 17]

Policy Actions

The Government will:

v.       Expedite land adjudication and registration with a view to securing the protection of land owners/users and communities especially in areas ear-marked for major projects;

vii.    Sensitise relevant sections of the public especially women and other marginalised and minority groups on –

1. 1. Land laws, including resettlement and compensation frameworks; […]

viii.   Develop procedural guidelines for use by businesses, individuals and communities in their negotiations for land access and acquisition. These guidelines will ensure and safeguard the participation of women, persons living with disabilities, youth, children and other marginalised groups;

ix.      Work with stakeholders to develop a natural resource revenue management policy and regulatory framework for administering and managing natural resource revenue paid to host communities. This framework should seek to promote equity, inclusivity and community decision-making and will include training to enhance the capacity of communities to manage their affairs. It will also serve to guide the operationalisation of mining revenue as envisaged by the Mining Act, 2016;

3.3. Pillar 3: Access to Remedy

Policy Actions

A) State-based judicial and non-judicial remedies [Pages 19-20]

The Government will:

i.      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;

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

ANNEX 1: SUMMARY OF POLICY ACTIONS

2.2 Kenya’s Experience with Business and Human Rights [Pages 6-7]

To develop a sustainable and equitable extractive sector, these challenges must be addressed especially since they have a far reaching impact on human rights. There is need to embed international human rights standards early into the exploration and drilling contracts, impact assessments, due diligence mechanisms and business reporting. This National Action Plan clarifies the Government’s expectation from concerned businesses in this regard.

CHAPTER THREE: POLICY ACTIONS

Policy Actions [Page 21]

The Government will:

i.    Introduce a requirement for conducting Human Rights due diligence including the particular impacts on gender before approval of licences/permits to businesses; […]

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights [Page 18]

Human rights due diligence is the primary tool that ensures that businesses identify the human rights risks of their activities, take measures to avoid or mitigate them, and where the harm has already occurred, ensure that the victims have access to an effective remedy. This responsibility extends beyond their activities to their business relationships including suppliers and contractors.

There is no mandatory requirement for human rights due diligence. Businesses, including state-owned enterprises, have not embraced the practice of engaging those whose rights are most likely to be impacted by their operations. […]

Policy Actions [Page 19]

c)    Human rights due diligence: Require businesses to identify their human rights impacts including through conducting comprehensive and credible human rights impact assessments before they commence their operations and continuously review the assessment to ensure that they prevent, address and redress human rights violations. Such impact assessment should involve meaningful consultation with potentially affected groups and other relevant stakeholders and include particular gendered impacts.

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

4.1. SUMMARY OF POLICY ACTIONS [Annex] 

ANNEX 2: LEGISLATION PROPOSED FOR ENACTMENT OR AMENDMENT

2.4 Labour [Page 12]

It is imperative that the labour market is regulated to ensure compliance with constitutional, legal and international standards. Several SDGs and ILO core conventions cover various aspects of working conditions including decent work and economic growth, reduction of inequality, quality education and gender equality. The SDG targets include: […] 8.8 (protect labour rights and promote safe and secure working environments for all workers, including migrant workers, in particular women migrants, and those in precarious employment) […]

During the stakeholders’ consultations the following concerns were identified:

4) Lack of effective regulation of recruitment agencies for migrant workers […]

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [Page 17]

Policy Actions

The Government will:

vii.      Sensitise relevant sections of the public especially women and other marginalised and minority groups on –

a) Land laws, including resettlement and compensation frameworks; b. Labour laws and the rights of migrant workers; and

c) Environmental laws and standards;

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights

b) Human Rights Policy commitments [page 18-19]

The Government will:

ii.      encourage recruitment agencies to provide any required repatriation, legal and psychological support to migrant workers who have suffered or been subjected to abuse abroad;

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

ANNEX 1: SUMMARY OF POLICY ACTIONS

3.3. Pillar 3: Access to Remedy

Policy Actions [Pages 19-20]

A) State-based judicial and non-judicial remedies

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:

• […]
• Constitutional bodies including the KNCHR
• […]

CHAPTER FOUR: IMPLEMENTATION AND MONITORING [page 22]

To ensure that the measures proposed in this NAP are implemented, there shall be a NAP Steering Committee overseen by the Department of Justice and the Kenya National Commission on Human Rights. The Implementing Committee will consist of representatives from the following institutions:

6. Kenya National Commission on Human Rights

ANNEX 1: SUMMARY OF POLICY ACTIONS 

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:

• • 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 harassment [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 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]

1.2. The National Action Plan Formulation Process

Stakeholders’ Consultations [Page 4]

Given the wide range of business-related human rights concerns, the NSC identified five themes, prioritised by stakeholders, as the focus of this NAP. These are: land and natural resources, revenue transparency, environmental protection, labour rights and access to remedy. Additionally, there was recognition that certain groups are disproportionately impacted by businesses. In this regard issues of gender, the situation of vulnerable, marginalised and minority groups such as persons with disabilities (PWDs), indigenous groups, were identified as cross cutting issues to be addressed under each of the themes.

CHAPTER TWO: SITUATIONAL ANALYSIS AND THEMATIC AREAS OF FOCUS

2.6 Labour [Page 12]

It is imperative that the labour market is regulated to ensure compliance with constitutional, legal and international standards. Several SDGs and ILO core conventions cover various aspects of working conditions including decent work and economic growth, reduction of inequality, quality education and gender equality. The SDG targets include: [..] 4.5 (eliminate gender disparities in education and ensure equal access to all levels of education and vocational training for the vulnerable, including persons with disabilities, indigenous peoples and children in vulnerable situations); […] and 8.5 (achieve full and productive employment and decent work for all women and men, including for young people and persons with disabilities, and equal pay for work of equal value). […]

Other constitutional rights related to labour include Article 30 which prohibits slavery, servitude and forced labour and Article 27 which guarantees equality and freedom from discrimination, specifically including the equal rights of women and men to opportunities in the economic sphere and the dictate that no person shall discriminate against another person directly or indirectly on grounds including […] disability […].

2.7 Access to Remedy [Pages 13-14]

[…] [T]here 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.

CHAPTER THREE: POLICY ACTIONS

3.1 Pillar 1: The State Duty to Protect [Pages 16-17]

Policy Actions

The Government will:

viii.    Develop procedural guidelines for use by businesses, individuals and communities in their negotiations for land access and acquisition. These guidelines will ensure and safeguard the participation of women, persons living with disabilities, youth, children and other marginalised groups;

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights [Pages 18-19]

Policy Actions

a) Training: Develop and disseminate guidance for businesses on their duty to respect human rights and the operationalisation of this duty in the Kenyan context, including the implications of their operations on the environment, gender, human rights defenders, minorities, persons living with disabilities, marginalised and other vulnerable groups to promote responsible labour practices and inclusivity.

3.3. Pillar 3: Access to Remedy

B) Non- State-Based Grievance Mechanisms [Page 21]

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;

CHAPTER FOUR: IMPLEMENTATION AND MONITORING [Page 22]

To ensure that the measures proposed in this NAP are implemented, there shall be a NAP steering committee overseen by the Department of Justice and the Kenya National Commission on Human Rights. The Implementing Committee will consist of representatives from the following institutions:

4.    Three (3) Civil Society Organizations Representatives of persons living with disabilities, women and indigenous persons

2.1 Introduction [Page 5]

The NAP is aligned to Kenya’s Vision 2030 and the Sustainable Development Goals (SDGs) for both vertical and horizontal policy coherence and integration. It links each of the identified themes and the cross cutting issues to the corresponding SDGs. The NAP does not create any new obligations but is an overarching coherent tool to guide all actors in respecting human rights as they play their expected role in the development of the country, including attainment of the SDGs.

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [page 16-17]

Under international law, States have the primary obligation to protect against human rights abuses within their jurisdiction and territory. Pillar 1 of the UNGPs clarifies that this obligation includes protecting against human rights abuses by third parties such as businesses. In this regard, states should take appropriate steps to prevent, investigate, punish and redress such abuses by having in place effective policy, legal, regulatory and adjudicative measures. States are therefore expected to explicitly set out expectations that all businesses in their jurisdictions, including state-owned businesses and those businesses with which they engage in commercial transactions, respect human rights through policies, laws and guidance. Additionally, States are expected to guarantee policy coherence across different government agencies, thereby ensuring that different state institutions are aware of and observe the State’s human rights obligations. The State’s duty in this regard includes providing these institutions with the requisite information through training and support (horizontal coherence) while ensuring that the policies and regulatory frameworks are consistent with the state’s international human rights obligations (vertical coherence). This coherence should extend to the State’s investment treaties with other States or with business enterprises. This State duty is also consistent with the spirit of the SDGs including 5.1 (non-discrimination on gender grounds), 10 (reduction of inequalities), 12 (responsible production and consumption) and 16 (accountable and inclusive institutions).

2.2 Kenya’s Experience with Business and Human Rights [Page 6]

Discoveries of oil and other natural resources present opportunities but also potential grounds for challenges to human rights such as those relating to sustainable land use, relations with local communities, and ensuring transparency and accountability in revenue streams, violation of local laws by foreign companies operating in the country. For example, the relationship between local communities and oil companies has raised a number of grievances on the part of the local communities revolving around community engagement, land use, environmental protection, employment, procurement and corporate social responsibility.

2.4 Revenue Transparency [page 10]

Despite […] efforts, the NAP consultations identified several challenges that affect revenue transparency:

i.    Corruption in the process of revenue collection and the management of public revenue. Stakeholders identified corruption in the business licensing process, the process of tax collection and public procurement attributed to both public and private sector actors

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect

Policy Actions [page 18]

The Government will:

xi.         Strengthen leverage in using public procurement to promote human rights. This will involve the review of existing public procurement policies, laws and standards and their impacts with due regard to the state’s human rights obligations including women’s rights as part of the criteria;

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

ANNEX 1: SUMMARY OF POLICY ACTIONS [Page 24]

3.1. Pillar 1: The State Duty to Protect [Page 16]

Under international law, States have the primary obligation to protect against human rights abuses within their jurisdiction and territory. Pillar 1 of the UNGPs clarifies that this obligation includes protecting against human rights abuses by third parties such as businesses. In this regard, states should take appropriate steps to prevent, investigate, punish and redress such abuses by having in place effective policy, legal, regulatory and adjudicative measures. States are therefore expected to explicitly set out expectations that all businesses in their jurisdictions, including state-owned businesses and those businesses with which they engage in commercial transactions, respect human rights through policies, laws and guidance.

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights [Page 18]

The current voluntary initiatives established and adopted by business associations on different human rights issues do not have strict compliance and reporting mechanisms. They therefore fail to offer businesses that have ascribed to them the required guidance and supervision to ensure that their operations respect human rights. There is no mandatory requirement for human rights due diligence. Businesses, including state-owned enterprises, have not embraced the practice of engaging those whose rights are most likely to be impacted by their operations in any human rights due diligence.

b) Human Rights Policy commitments [Page 19]

iii.     Enforce compliance with human rights standards by State owned enterprises and other businesses that receive export credit and state support, including by providing access to remedy for human rights violations;

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

ANNEX 1: SUMMARY OF POLICY ACTIONS [Page 25]

2.2 Kenya´s Experience with Business and Human Rights [Page 7]

There is need to embed international human rights standards early into the exploration and drilling contracts, impact assessments, due diligence mechanisms and business reporting. This National Action Plan clarifies the Government’s expectation from concerned businesses in this regard.

2.5 Environmental Protection [Pages 10-11]

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:

• 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.
• 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.

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [Page 16]

Policy Actions

The Government will:

iv.    Develop guidelines for non-financial reporting under the Companies Act 2015;

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights [Page 18]

The current voluntary initiatives established and adopted by business associations on different human rights issues do not have strict compliance and reporting mechanisms. They therefore fail to offer businesses that have ascribed to them the required guidance and supervision to ensure that their operations respect human rights. There is no mandatory requirement for human rights due diligence. Businesses, including state-owned enterprises, have not embraced the practice of engaging those whose rights are most likely to be impacted by their operations in any human rights due diligence.

Policy Actions

d) Reporting : Enforce the requirement for businesses to prepare non-financial reports in line with the Companies Act, 2015, and encourage proactive disclosure of their impacts on human rights and the mitigation measures they are taking in this regard.

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

ANNEX 1: SUMMARY OF POLICY ACTIONS

ANNEX 2: LEGISLATION PROPOSED FOR ENACTMENT OR AMENDMENT

1.1  Overview [Page viii]

The second Medium Term Plan objectives were each mapped to the 17 Sustainable Development Goals (SDGs) to ensure that the global development framework and its implementation is directly linked to achieving both Vision 2030 and the SDGs.

[….]

CHAPTER TWO: SITUATIONAL ANALYSIS AND THEMATIC AREAS OF FOCUS [Page 5]

The NAP is aligned to Kenya’s Vision 2030 and the Sustainable Development Goals (SDGs) for both vertical and horizontal policy coherence and integration. It links each of the identified themes and the cross cutting issues to the corresponding SDGs. The NAP does not create any new obligations but is an overarching coherent tool to guide all actors in respecting human rights as they play their expected role in the development of the country, including attainment of the SDGs.

2.3 Natural Resources [Page 7]

Kenya has a relatively progressive constitutional and statutory framework for the ownership, management and access to land and natural resources found within her boundaries. The Constitution provides that land, whether public, private or communal, shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable.

The NAP consultations identified the following concerns related to land, natural resource development and business:

6.    Lack of sustainable benefits for host communities from the exploitation of natural resources despite the constitutional imperative for equitable sharing of benefits.

2.4 Revenue Transparency [Page 9] 

Tax revenue is the most important, reliable and sustainable means of resourcing initiatives that contribute to the realisation of human rights such as health and education. Businesses are significant contributors to tax revenue. […]

Tax justice and the regulation of financial behaviour of companies can no longer be treated in isolation from the corporate responsibility to respect human rights, outlined in the UNGPs and business commitments to support the SDGs. Indeed, the SDGs include specific targets on reducing illicit financial flows (IFFs), returning stolen assets, reduction of corruption, and strengthening domestic resource mobilisation.

2.5. Environmental Protection [Page 11]

Various SDGs targets relate to the environment and are underpinned by human rights⁴.

⁴ They include 1.5 (building the resilience of the poor and the vulnerable to reduce their exposure to climate change impacts); 6.3 (improving water quality by reducing pollution, eliminating dumping and minimizing release of hazardous chemicals); 7.2 (increasing use of renewable energy); 9.4 (adoption of clean and environmentally sound technologies and industrial processes); 11.6 (reducing adverse environmental impact of cities, including by paying attention to air quality and municipal and other waste management); and 12.4 (adoption of environmentally sound management of chemicals and waste). Others include 12.6 (encourage companies ‘to adopt sustainable practices and to integrate sustainability information in their reporting cycle’), 12.7 (promotion of public procurement practices that are sustainable), 13.1 (strengthening resilience to climate change) and 15.2 (promotion of the implementation of sustainable management of forests, including halting deforestation).

CHAPTER THREE: POLICY ACTIONS

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights

b) Human Rights Policy commitments [Page 19]

iv.       Promote the use of human rights and sustainability as criteria for industry awards by businesses and business associations.

2.4 Revenue Transparency [Page 9]  

Tax revenue is the most important, reliable and sustainable means of resourcing initiatives that contribute to the realisation of human rights such as health and education. Businesses are significant contributors to tax revenue. The Kenya Revenue Authority Act, 1995 provides that domestic revenue is derived from several sources including taxes, duties, fees, levies, charges, penalties, fines or other monies and are collected from individuals, private and public businesses by different entities at national and county level.

Tax justice and the regulation of financial behaviour of companies can no longer be treated in isolation from the corporate responsibility to respect human rights, outlined in the UNGPs and business commitments to support the SDGs. Indeed, the SDGs include specific targets on reducing illicit financial flows (IFFs), returning stolen assets, reduction of corruption, and strengthening domestic resource mobilisation. In this respect, Goal 16 on the promotion of peaceful and inclusive societies includes specific targets on reducing illicit financial flows (target 16.4), corruption (target 16.5), Goal 17 on strengthening implementation and partnerships, target 17.1, provides for the strengthening of domestic resource mobilisation, including through international support to developing countries, to improve domestic capacity for tax and other revenue collection.

Like in many jurisdictions, Kenya faces challenges concerning revenue mobilisation and the link to business activities, among them IFFs, tax avoidance and tax evasion by businesses. These practices result in reduction of the resources available for investment in essential social services fostering inequalities, undermining economic and social institutions and discouraging transparency in matters of public finances. The Kenya Government has enacted legislation to address these practices, including the Anti-Corruption and Economic Crimes Act, the Bribery Act, 2016, and amendments in 2017 to the Proceeds of Crime and Anti-Money Laundering Act, 2009 (POCAMLA).

The 2017 amendments to the Proceeds of Crime and Anti-Money Laundering Act, 2009 establish the Financial Reporting Centre (FRC), an independent financial intelligence agency charged with combating money laundering and identifying proceeds of crime including tax evasion. The Ethics and Anti-Corruption Commission Act, 2012 creates the Ethics and Anti-Corruption Commission (EACC) whose mandate is to combat and prevent corruption and economic crimes set out in the Anti-Corruption and Economic Crimes Act. The Bribery Act, 2016 seeks to address the supply side of corruption by placing a duty on businesses to put in place appropriate measures relative to their size, scale and nature of operations towards the prevention of bribery and corruption, and also requires any person holding a position of authority in a business to report any knowledge or suspicion of bribery within twenty-four hours. Kenya is also party to international and regional initiatives on combating bribery and corruption.

Despite the above efforts, the NAP consultations identified several challenges that affect revenue transparency:

1.  Corruption in the process of revenue collection and the management of public revenue. Stakeholders identified corruption in the business licensing process, the process of tax collection and public procurement attributed to both public and private sector actors.
2. Lack of disclosure of contracts particularly those that have significant economic and social consequences.
3. Lack of transparency in administration and management of revenues from the exploitation of natural resources including from mining and oil and gas activities.
4. The absence of legal beneficial ownership disclosure aids the veil of secrecy in determining who owns and controls business entities inhibiting law enforcement’s ability to ‘follow the money’.

CHAPTER THREE POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect

Policy Actions [Page 18]

The Government will:

xii.     Review current trade and investment promotion agreements and bring them into compliance with the Constitution and international human rights standards to ensure that they are not used to facilitate illicit financial flows and tax evasion by businesses.

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

ANNEX 1: SUMMARY OF POLICY ACTIONS [Page 24] 

3.1. Pillar 1: The State Duty to Protect [Page 18]

Policy Actions

The Government will:

xii.    Review current trade and investment promotion agreements and bring them into compliance with the Constitution and international human rights standards to ensure that they are not used to facilitate illicit financial flows and tax evasion by businesses.

CHAPTER FOUR: IMPLEMENTATION AND MONITORING [Page 22]

To ensure that the measures proposed in this NAP are implemented, there shall be a NAP Steering Committee overseen by the Department of Justice and the Kenya National Commission on Human Rights. The Implementing Committee will consist of representatives from the following institutions:

5.    Ministry of Trade and Industrialisation

ANNEX 1: SUMMARY OF POLICY ACTIONS

2.6 Labour [Pages 12-13]

The Kenyan labour market is highly informal. As at 30th June 2019, 83% of the working population was in the informal sector5 . In 2019, male employees accounted for 64.5 per cent of the total wage employment in the modern sector. Majority of female employees were working in Education, Agriculture, forestry and fishing, Public administration and defence. Overall, casual employment registered a growth of 6.0 per cent and accounted for 23.4 per cent of the total wage employment (KNBS, 2020). Casual workers have less protections under the labour laws such as the right to collective bargaining or paid leave. The ILO refers to this as casualization of labour and has expressed concerns in the increasing use of casual labour in formal employment. While the current NAP has no specific actions on the informal sector, it is important to formulate policies for the proper oversight of this sector.

It is imperative that the labour market is regulated to ensure compliance with constitutional, legal and international standards. Several SDGs and ILO core conventions cover various aspects of working conditions including decent work and economic growth, reduction of inequality, quality education and gender equality. The SDG targets include: 1.3 (improve nationally appropriate social protection systems for all, particularly the poor and vulnerable); 2.3 (double the agricultural productivity and incomes of small[1]scale food producers, in particular women, indigenous peoples, family farmers, pastoralists and fishers); 4.5 (eliminate gender disparities in education and ensure equal access to all levels of education and vocational training for the vulnerable, including persons with disabilities, indigenous peoples and children in vulnerable situations); 5.2 (eliminate all forms of violence against all women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation); and 8.5 (achieve full and productive employment and decent work for all women and men, including for young people and persons with disabilities, and equal pay for work of equal value). Others are 8.8 (protect labour rights and promote safe and secure working environments for all workers, including migrant workers, in particular women migrants, and those in precarious employment), and 16.2 (end abuse, exploitation, trafficking and all forms of violence against and torture of children).

Article 41 of the Constitution of Kenya guarantees every person the right to fair labour practices, and confers specific rights on workers, employers and trade unions and employers’ organisations. Every worker is entitled to fair remuneration, reasonable working conditions, the right to join and participate in the activities of a trade union and go on strike as a means of advocating for their labour-related rights. Employers are entitled to form and join employers’ organisations and participate in such organisations’ programs. Trade unions and employers’ organisations are entitled to organise and form new or join existing federations. Other constitutional rights related to labour include Article 30 which prohibits slavery, servitude and forced labour and Article 27 which guarantees equality and freedom from discrimination, specifically including the equal rights of women and men to opportunities in the economic sphere and the dictate that no person shall discriminate against another person directly or indirectly on grounds including sex, health status, religion, ethnic origin, disability and social origin.

Several statutes give effect to these labour-related constitutional guarantees, including those dealing with labour disputes, working conditions and protection against discrimination. Some of the critical statutes are the Occupational Safety and Health Act, 2007, the Employment Act, 2007, the Labour Relations Act, 2007, Childrens Act, 2001,HIV& AIDS Prevention and Control Act, 2006 and the Sexual Offences Act, 2006. During the stakeholders’ consultation the following concerns were identified:

1. Sexual harassment is widespread and underreported with women being the majority of victims- fear of job loss being a major factor in the reluctance to report. Furthermore there is low enforcement of the Sexual Offences Act, 2006;
2. Lack of access to maternity and paternity leave. While the law provides and protects both maternity and paternity leave, not all workers in the private sector are able to access this benefit for fear of job loss. Once again, enforcement of the law in this respect remains weak;
3. Low level of awareness on labour rights among workers (mostly women in low income or low skilled jobs) and employers;
4. Lack of effective regulation of recruitment agencies for migrant workers;
5. Lack of publicly available statistics disaggregated by sex and other vulnerabilities that could be useful in addressing sex and other forms of discrimination in the workplace; and,
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

[T]here 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.

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [Pages 16-17]

Policy Actions

The Government will:

i.    Ensure continuous training for government agencies’ workers involved in the promotion and regulation of businesses on the State’s human rights obligations and the nexus to their various mandates and functions;

vii.    Sensitise relevant sections of the public especially women and other marginalised and minority groups on –

1. 1. 1. Land laws, including resettlement and compensation frameworks;
      2. Labour laws and the rights of migrant workers; and
      3. Environmental laws and standards;

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights [Page 19]

Policy Actions

b) Human Rights Policy commitments

ii.    Encourage recruitment agencies to provide any required repatriation, legal and psychological support to migrant workers who have suffered or been subjected to abuse abroad;

3.3 Pillar 3: Access to Remedy [Page 20]

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.

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

ANNEX 1: SUMMARY OF POLICY ACTIONS