Kenya

The Government will:

9. 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 […] , youth, children and other marginalised groups.

3.3. Pillar 3: Access to Remedy
Policy Actions 
A) State-based judicial and non-judicial remedies [Page 25-26]

The Government will:

7. increase the capacity of the labour inspection department to handle labour related grievances, including through: increasing the number of labour inspectors to monitor and enforce compliance with labour standards by businesses, with particular attention to the implementation of mandatory policies to prevent and address … prohibition of child labour …

B) Non- State-based Grievance Mechanisms [Page 26]
Policy Actions

The Government will:

1.  develop and disseminate guidance for businesses on the establishment of credible operational-level grievance mechanisms that are consistent with international standards. Such grievance mechanisms should be responsive to the needs and rights of vulnerable groups i.e. women, persons with disabilities, children and indigenous persons

CHAPTER FOUR: IMPLEMENTATION AND MONITORING [Page 27]

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: …

12. National Council for Children Services

2.2 Revenue Transparency [pages 14-15]

[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 and the process of tax collection and public procurement, which they 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; and

4. The absence of legal beneficial ownership disclosure aids the veil of secrecy in determining who owns and controls business entities, inhibiting law enforcement 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:

5) develop regulations that facilitate disclosure of corporate beneficial ownership of business and related entities such as trust;

7) strengthen regulations on the registration and oversight of recruitment agencies involved in the recruitment of Kenyans for employment in businesses abroad.

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights

Policy Actions [Page 23-24]

b) Human Rights Policy commitments

The Government will:

1. require business to adopt human rights policies, including taking measures to ensure their operations respect human rights, including by providing access to remedy for human rights violations:

d) Reporting

The Government will enforce the requirement for businesses to prepare non-financial reports in line with the Companies Act, 2015 […]

2.2 Revenue Transparency [Page 14-15]

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) and corruption (target 16.5).

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 a State 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 and the process of tax collection and public procurement, which they 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; and

4. The absence of legal beneficial ownership disclosure aids the veil of secrecy in determining who owns and controls business entities, inhibiting law enforcement ability to ‘follow the money’.

1.2. The National Action Plan Formulation Process

Stakeholders’ Consultation [Page 11]

Given the wide range of business-related human rights concerns, the NBA [National Baseline Assessment] coupled with the regional consultations were vital in the identification of the recurring thematic areas for the NAP. These are: Land and natural resources, Revenue transparency, Environmental Protection, Labour Rights and Access to remedy.

CHAPTER TWO: THEMATIC AREAS OF FOCUS [Page 12]

2.1 Land and Natural Resources [Page 12]

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.

2.3. Environmental Protection [Page 15-17]

There is growing global consciousness on the impacts of business on the environment. The operations of businesses such as extractives, manufacturing and infrastructure could have adverse impacts on the environment leading to illness or death of populations 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 State party to, among others.

Various SDG goals relate to the environment. These targets are underpinned by human rights, and 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); 12.4 (adoption of  environmentally sound management of chemicals and waste).

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 violated or is likely to be violated.

The Environmental Management and Coordination Act, 1999 (EMCA), which was substantively 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 tool to help decision makers improve the environmental outcomes of their management decisions. It is mandatory that certain activities that are likely to have significant impacts on the environment are evaluated and that they spell out measures to be put in place 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.

Stakeholders’ consultations during the development of this NAP identified the following concerns related to the impacts of businesses on the environment:

1) 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; and

2) Loss of biodiversity due to destruction and encroachment on the natural environment for commercial purposes which negatively impacts livelihoods, health and the access to clean and safe water for present and future generations.

2.5. Access to Remedy [Page 19-20]

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:

4) There have been instances where human rights defenders who have lodged cases against businesses, especially land and environment grievances, have reportedly faced death threats and other forms of intimidation. Such hostility may instil fear in others who may wish to lodge complaints, robbing communities and individuals of the protection that the law could have offered against business-related abuses.

CHAPTER THREE: POLICY ACTION

3.1. Pillar 1: The State Duty to Protect

Policy Actions [Page 21-22]

The Government will:

8) Sensitise relevant sections of the public especially women and other marginalised and minority groups on Land laws, including resettlement and compensation frameworks Labour laws and the rights of migrant workers and environmental laws and standards

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights

Policy Actions [Page 23]

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 [Page 25]

The Government will:

1. enforce all applicable laws as well as respect internationally recognised human rights laws and standards as they relate to land access and acquisition, natural resource management, environment and revenue management

[…]

6. improve access to the Human Rights Division of the High Court, Employment and Labour Relations Court, and the Environment and Land Court to ensure that they are accessible, expeditious and affordable avenues for remedying business-related human rights abuse

4.1. SUMMARY OF POLICY ACTIONS 

2.1 Land and Natural Resources [Page 13]

The country has also made strides in the legal protection of women’s property rights in matters of ownership, inheritance, management and disposal. Despite the new laws, there are still obstacles including cultural traditions and lack of awareness that inhibit women from accessing their fair share of property and attendant rights.

2.4. Labour [Page 17-19]

It is important that the labour market is regulated to ensure compliance with Constitutional and international standards. Several SDGs and ILO core conventions cover various aspects of working conditions including: […] reduction of inequality, quality education and gender equality. Other Constitutional rights related to labour include […] equality and freedom from discrimination under Article 27, 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

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

2.5 Access to Remedy [Page 19]

[…] 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.

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [Page 21-22]

[…] 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).

The Government will:

8) Sensitise relevant sections of the public especially women and other marginalised and minority groups on Land laws […]

9) Develop 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 23-24]   

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, gender, minorities, persons living with disabilities, marginalised and other vulnerable groups to promote responsible labour practices and inclusivity.

c) Human rights due diligence

The government will require businesses to carry out comprehensive human rights due diligence including through conducting comprehensive and credible human rights impact assessments … [which] should involve meaningful consultation with potentially affected groups and other relevant stakeholders and include particular gendered impacts.

3.3. Pillar 3: Access to Remedy

Policy Actions [Page 25]

A) State-based judicial and non-judicial remedies

The Government will:

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

• increasing the number of labour inspectors to monitor and enforce compliance with labour standards by businesses, with particular attention to the implementation of mandatory policies to prevent and address sexual harassment 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 […].

4.1. SUMMARY OF POLICY ACTIONS [Annex] 

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

2.1  Land and Natural Resources [Pages 12-13]

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

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

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

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

2.2. Revenue Transparency [page 15]

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

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

2.3. Environmental Protection [Page 15]

There is growing global consciousness on the impacts of business on the environment. The operations of businesses such as extractives, manufacturing and infrastructure could have adverse impacts on the environment leading to illness or death of populations

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [Page 22]

The Government will:

10) 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; […]

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

2.1 Land and Natural Resources [Page 13-14]

Several SDGs relate to land and natural resources. These include […] 2.3 (double agricultural productivity and incomes of small-scale food producers, in particular women, indigenous peoples, family farmers, pastoralists and fishers, including through secure and equal access to land…) […].

The country has […] made strides in the legal protection of women’s property rights in matters of ownership, inheritance, management and disposal.
The NAP consultations identified the following challenges 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 issue 

2.4. Labour [Page 17-19]

It is important that the labour market is regulated to ensure compliance with Constitutional and international standards. Several SDGs and ILO core conventions cover various aspects of working conditions including; […] reduction of inequality, quality education and gender equality. The relevant SDG targets include: […] 2.3 (double the agricultural productivity and incomes of small 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, 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); 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); Other Constitutional rights related to labour include  […] equality and freedom from discrimination under Article 27, 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.

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;
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 resepct [sic] remains weak;

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 disagregated [sic] by sex and other vulnerabilities that could be useful in addressing sex and other forms of discrimination in the workplace […]

2.4 Access to Remedy [Page 19]

[…] 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.

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [Page 21-22]

Policy Actions

The Government will:

8) Sensitise relevant sections of the public especially women and other marginalised and minority groups on Land laws, including resettlement and compensation frameworks Labour laws and the rights of migrant workers and environmental laws and standards;

9) 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 … and other marginalised groups;

12) 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 the participation of women …

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights  

Policy Actions [Page 23-24]     

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 … gender, … and other vulnerable groups to promote responsible labour practices and inclusivity.

c) Human rights due diligence

The government will require businesses to carry out comprehensive human rights due diligence 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 any 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

Policy Actions [Page 25]

A) State-based judicial and non-judicial remedies

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

• increasing the number of labour inspectors to monitor and enforce compliance with labour standards by businesses, with particular attention to the implementation of mandatory policies to prevent and address sexual harassment and violence, payment of minimum wages, equal pay for work of equal value, prohibition of child labour and non-discrimination against women […]

CHAPTER FOUR: IMPLEMENTATION AND MONITORING [Page 27]

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

13. National Gender & Equality Commission

4.1. SUMMARY OF POLICY ACTIONS [Annex] 

1.1 Overview

Objectives of the NAP [Page 11]

The objectives of this NAP are:

2) To guide businesses on the measures they should undertake to meet their responsibility to respect human rights in their operations

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [Page 23]

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.

Policy Actions

The Government will:

4) develop guidelines for non-financial reporting under the Companies Act 2015;

9) develop procedural guidelines for use by businesses, individuals and communities in their negotiations for land access and acquisition.

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

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.

Policy Actions [Page 23-24]          

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, gender, 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

Policy Actions [page 26]

The Government will:

1. develop and disseminate guidance for businesses on the establishment of credible operational-level grievance mechanisms that are consistent with international standards. Such grievance mechanisms should be responsive to the needs and rights of vulnerable groups i.e. women, persons with disabilities, children and indigenous persons

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

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

4.1. SUMMARY OF POLICY ACTIONS [Annex] 

2.5. Access to Remedy [Page 20]

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

4) There have been instances where human rights defenders who have lodged cases against businesses, especially land and environment grievances, have reportedly faced death threats and other forms of intimidation. Such hostility may instil fear in others who may wish to lodge complaints, robbing communities and individuals of the protection that the law could have offered against business-related abuses;

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

4.1. SUMMARY OF POLICY ACTIONS [Annex] 

1.1 Overview

Objectives of the NAP [Page 11]

The objectives of this NAP are: …

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

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect

Policy Actions [Page 21]

The Government will:

1) introduce a requirement for conducting Human Rights Due Dilligence [sic], before approval of licences/permits to businesses …

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

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.

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.

b) Human Rights Policy commitments [Page 23]

The Government will:

1. require business to adopt human rights policies, including taking measures to ensure their operations respect human rights, including by providing access to remedy for human rights violations;

c) Human rights due diligence [Page 24]

The government will require businesses to carry out comprehensive human rights due dilligence [sic] 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 any 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] 

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights 

Policy Actions [Page 24]

c) Human rights due diligence

The government will require businesses to carry out comprehensive human rights due diligence 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 any 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 26]

Policy Actions

The Government will:

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

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

4.1. SUMMARY OF POLICY ACTIONS [Annex] 

2.1 Land and Natural Resources [Page 12-14]

Both the Constitution of Kenya and international human rights law guarantee […] protections for indigenous peoples in recognising the unique importance, cultural and spiritual values that they attach to their lands, territories and natural resources (United Nations Declaration on the Rights of Indigenous Peoples [2007] and the ILO’s Indigenous and Tribal Peoples 13 Convention [1989]). These guarantee land rights for indigenous peoples and provide protections against displacement of these peoples from their lands.

The NAP consultations identified the following chalenges [sic] related to land, natural resource development and business:

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

CHAPTER THREE: POLICY ACTIONS

3.3. Pillar 3: Access to Remedy

Policy Actions

B) Non- State-based judicial and non-judicial remedies [Page 26]

The Government will:

1. develop and disseminate guidance for businesses on the establishment of credible operational-level grievance          mechanisms that are consistent with international standards. Such grievance mechanisms should be responsive to the needs and rights of vulnerable groups i.e. women, persons with disabilities, children and indiginous [sic] persons

CHAPTER FOUR: IMPLEMENTATION AND MONITORING [Page 27]

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

3.1. Pillar 1: The State Duty to Protect [Page 21-23]

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 This coherence should extend to the State’s investment treaties with other States or with business enterprises.

Policy Actions

The Government will:

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

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

4.1. SUMMARY OF POLICY ACTIONS [Annex] 

Stakeholders’ Consultation [Page 11]

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

Objectives of the NAP [page 11]

The objectives of this NAP are: […]

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

CHAPTER TWO: THEMATIC AREAS OF FOCUS

2.4. Labour [Page 18]

During the stakeholders’ consultations the following concerns were identified:

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

2.5. Access to Remedy [Page 19]

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

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

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

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

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

3) The cost of litigation is still high for significant sections of individuals and communities. In some lawsuits, for example, it may be necessary to summon experts such as environmental experts to testify on specific issues. Such expertise may be unavailable for the community or where available, may be very expensive to secure;

4) There have been instances where human rights defenders who have lodged cases against businesses, especially land and environment grievances, have reportedly faced death threats and other forms of intimidation. Such hostility may instil fear in others who may wish to lodge complaints, robbing communities and individuals of the protection that the law could have offered against business-related abuses;

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

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

Policy Actions 

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

The Government will:

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

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

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

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

6. improve access to the Human Rights Division of the High Court, Employment and Labour Relations Court, and the Environment and Land Court to ensure that they are accessible, expeditious and affordable avenues for remedying business-related human rights abuses; and

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

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

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

4.1. SUMMARY OF POLICY ACTIONS   

2.1 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.

Both the Constitution of Kenya and international human rights law guarantee against arbitrary deprivation of property and provide a standard of conduct to be followed in the case of evictions. Furthermore, there are additional protections for indigenous peoples in recognising the unique importance, cultural and spiritual values that they attach to their lands, territories and natural resources (United Nations Declaration on the Rights of Indigenous Peoples [2007] and the ILO’s Indigenous and Tribal Peoples Convention [1989]). These guarantee land rights for indigenous peoples and provide protections against displacement of these peoples from their lands. They also provide for consultation and consent to development projects.

Kenya has a progressive constitutional and statutory framework for the ownership, management and access to land and natural resources. 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 provides for public land under Article 62 , private land under Article 64 and community land under Article 63. The Community Land Act, 2016 deals substantively with community land which is vested in and held by communities identified on the basis of ethnicity, culture or similar community of interest. All matters relating to compulsory land acquisition, including access to land for business purposes, are governed the Land Act, 2012.

The country has also made strides in the legal protection of women’s property rights in matters of ownership, inheritance, management and disposal. Despite the new laws, there are still obstacles including cultural traditions and lack of awareness that inhibit women from accessing their fair share of property and attendant rights.

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

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

1. Lack of a predictable compensation and resettlement framework for the voluntary and compulsory acquisition of land;

2. Lack of guidance on community consultation 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 are the rightful parties to be consulted and compensated;

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.

2.5. Access to Remedy [Page 19-20]

Article 20(1) of the Constitution provides that the Bill of Rights binds all persons, including businesses. 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:

4) There have been instances where human rights defenders who have lodged cases against businesses, especially land and environment grievances, have reportedly faced death threats and other forms of intimidation. Such hostility may instil fear in others who may wish to lodge complaints, robbing communities and individuals of the protection that the law could have offered against business-related abuses;

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [Page 21-22]

Policy Actions

The Government will:

6) 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.;

8) Sensitise relevant sections of the public especially women and other marginalised and minority groups on Land laws, including resettlement and compensation frameworks Labour laws and the rights of migrant workers and environmental laws and standards;

9) 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;

10) 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 [Page 25]

The Government will:

1. enforce all applicable laws as well as respect internationally recognised human rights laws and standards as they relate to land access and acquisition, natural resource management, environment and revenue management,

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

4.1. SUMMARY OF POLICY ACTIONS [Annex]

2.4 Labour [Page 17]

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 21]

Policy Actions

The Government will:

7) Strengthen regulations on the registration and oversight of recruitment agencies involved in the recruitment of Kenyans for employment in businesses abroad. It will also work with host governments to take appropriate measures to promote safe and fair labour migration including agreements on free exchange of information, and more stringent regulation of employment agencies. The government will also explore measures for providing legal and psychosocial support services to victims of labour abuse.

8) Sensitise relevant sections of the public especially women and other marginalised and minority groups on Land laws, including resettlement and compensation frameworks Labour laws and the rights of migrant workers and environmental laws and standards;

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights

b) Human Rights Policy commitments [page 23-24]

The Government will:

2. 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

4.1. SUMMARY OF POLICY ACTIONS [Annex]  

1.2. The National Action Plan Formulation Process [page 10]

A National Steering Committee (NSC) consisting of representatives from 13 institutions was formed to coordinate and offer strategic guidance to the development process. These are:

2) Kenya National Commission on Human Rights (KNCHR)

3.3. Pillar 3: Access to Remedy

Policy Actions [page 25]

A) State-based judicial and non-judicial remedies

The Government will:

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

• Constitutional bodies including the KNCHR [Kenya National Commission on Human Rights].

CHAPTER FOUR: IMPLEMENTATION AND MONITORING [page 27]

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:

3. Kenya National Commission on Human Rights

4.1. SUMMARY OF POLICY ACTIONS 

3.1. Pillar 1: The State Duty to Protect [Page 22]

Page Policy Actions

The Government will:

4) develop guidelines for non-financial reporting under the Companies Act 2015;

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

d) Reporting

The Government will enforce the requirement for businesses to prepare nonfinancial 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 .

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

4.1. SUMMARY OF POLICY ACTIONS [Annex] 

Objectives of the NAP [page 11]

The objectives of this NAP are:

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

CHAPTER TWO: THEMATIC AREAS OF FOCUS

2.4. Labour [page 19]

During the stakeholders’ consultations the following concerns were identified:

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

2.5. Access to Remedy [page 20]

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

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

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

CHAPTER THREE: POLICY ACTIONS

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

Pillar 2 of the UNGPs states that businesses should respect human rights wherever they are operating. This is achieved by ensuring that they avoid abusing others’ rights and where harm has already occurred, taking steps to remedy the harm.

Policy Actions

e) Cooperation on access to remedies

The Government will require businesses to cooperate with government agencies and other stakeholders in facilitating remedies for business-related human rights violations. This includes actively participating in policy discussions on access to remedy and adopting policies that enhance access to remedy.

3.3 Pillar 2: Access to Remedy

Policy Actions 

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

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

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

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

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

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

Independent of the State’s obligation to ensure access to remedy, businesses should administer grievance mechanisms alone, or in conjunction with stakeholders or industry associations, either by having grievance mechanisms where they are based, referred to as operational-level grievance mechanisms, or by being part of any industry-wide grievance mechanisms. This is meant to ensure speedy, physically and financially accessible remediation of human rights complaints.

Policy Actions

The Government will:

1. develop and disseminate guidance for businesses on the establishment of credible operational-level grievance mechanisms that are consistent with international standards. Such grievance mechanisms should be responsive to the needs and rights of vulnerable groups i.e. women, persons with disabilities, children and indigineous [sic] persons;

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

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

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

4.1. SUMMARY OF POLICY ACTIONS [Annex]

1.2. The National Action Plan Formulation Process

Stakeholders’ Consultation [Page 11]

Given the wide range of business-related human rights concerns, the NBA coupled with the regional consultations were vital in the identification of the recurring thematic areas for the NAP. Additionally, there was recognition that certain groups are disproportionately impacted by business activities. In this regard, issues of gender, the situation of vulnerable, marginalised and minority groups such as persons with disabilities (PWDs), self-identifying indigenous groups, were identified as cross cutting issues to be addressed under each of the themes.

CHAPTER TWO: THEMATIC AREAS OF FOCUS

2.5. Access to Remedy [page 19]

[…] 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.

CHAPTER THREE: POLICY ACTIONS

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights  

Policy Actions [Page 22]     

The Government will:

9. 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

12. 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 the participation of women, persons with disability and other vulnerable groups;

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights

Policy Actions

a) Training [page 23]

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, gender, 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

B) Non- State-based judicial and non-judicial remedies [Page 26]

The Government will:

1.   develop and disseminate guidance for businesses on the establishment of credible operational-level grievance     mechanisms that are consistent with international standards. Such grievance mechanisms should be responsive to the needs and rights of vulnerable groups i.e. women, persons with disabilities, children and indigenous persons

CHAPTER FOUR: IMPLEMENTATION AND MONITORING [Page 27]

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

4.1. SUMMARY OF POLICY ACTIONS [Annex] 

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. Th[e] Constitutional imperative for businesses supports the State’s commitment to protect human rights and is consistent with the State’s obligations under regional and international human rights instruments. In this respect, Articles 2(5) and (6) of the 2010 Constitution provide that the general rules of international law, and any treaty or convention ratified by Kenya, form part of the laws of Kenya. Therefore, treaties and international agreements that Kenya is a State Party to and international normative frameworks such as the UNGPs, are a part of the domestic legal framework.

CHAPTER TWO: THEMATIC AREAS OF FOCUS [page 12]

The NAP is aligned to Kenya’s vision 2030 and the 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.

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [page 21]

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 human rights obligations (vertical coherence). This coherence should extend to the State’s investment treaties with other States or with business enterprises.

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

4.1. SUMMARY OF POLICY ACTIONS 

2.2 Revenue Transparency [page 15]

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 and the process of tax collection and public procurement, which they attributed to both public and private sector actors;

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect

Policy Actions [page 22]

The Government will:

12) 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 the participation of women, persons with disability and other vulnerable groups;

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

4.1. SUMMARY OF POLICY ACTIONS [Annex] 

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

2.2 Revenue Transparency [Page 14]  

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, 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. […]

Like many other 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 even discouraging transparency in matters of public finances.

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.

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 and the process of tax collection and public procurement, which they attributed to both public and private sector actors;

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

4. The absence of legal beneficial ownership disclosure aids the veil of secrecy in determining who owns and controls business entities, inhibiting law enforcement ability to ‘follow the money’.

3.1. Pillar 1: The State Duty to Protect

Policy Actions [page 23]

The Government will:

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

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

4.1. SUMMARY OF POLICY ACTIONS [Annex] 

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: THEMATIC AREAS OF FOCUS [Page 12]

The NAP is aligned to Kenya’s vision 2030 and the 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 development of the country, including attainment of the SDGs.

2.2 Revenue Transparency [Page 14]  

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.

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

Enhance understanding of the obligation of business to respect human rights

 Licencing and Regulation of business

 Negotiation of trade and investment treaties

 Promotion of investments and trade

1.2. The National Action Plan Formulation Process

Stakeholders’ Consultation [Page 11]

Given the wide range of business-related human rights concerns, the NBA coupled with the regional consultations were vital in the identification of the recurring thematic areas for the NAP. These are: Land and natural resources, Revenue transparency, Environmental Protection, Labour Rights and Access to remedy.

CHAPTER TWO: THEMATIC AREAS OF FOCUS

2.4. Labour [Pages 17 -19]

The Kenyan labour market is highly informal. Of the 19.3 persons active in the labour market, only 2.6 are in formal employment including in the private sector (Kenya National Bureau of Statistics (KNBS), 2018). Furthermore, 1 out of 4 jobs in the formal sector are held by casual employees, those with contracts of three months or less (KNBS, 2018).

Article 41 of the Constitution of Kenya guarantees every person the right to fair labour practices and confers specific rights on workers, employers, trade unions and employers’ organisations. Every worker is entitled to fair remuneration, reasonable working conditions, and 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 prohibition of slavery, servitude and forced labour under Article 30 and equality and freedom from discrimination under Article 27, 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 Counter Trafficking in Persons Act, 2010, Occupational Safety and Health Act, 2007, the Employment Act, 2007, the Labour Relations Act, 2007 and the Sexual Offences Act, 2006.

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;

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 recrutitment [sic] 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 cited as contributing factors.

2.5. Access to Remedy

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.

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect

Policy Actions [page 22]

The Government will:

7) strengthen regulations on the registration and oversight of recruitment agencies involved in the recruitment of Kenyans for employment in businesses abroad. It will also work with host governments to take appropriate measures to promote safe and fair labour migration including agreements on free exchange of information, and more stringent regulation of employment agencies. The government will also explore measures for providing legal and psychosocial support services to victims of labour abuse.;

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights

Policy Actions

b) Human Rights Policy commitments [page 24]

2. 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

4.1. SUMMARY OF POLICY ACTIONS [Annex]