Chapter Two continues the study with a defense of Ruggie’s overall preference to offer voluntary guidelines for states and corporations as opposed to binding international corporate obligations. The chapter highlights some of the criticisms levelled against Ruggie’s approach and his proposals, arguing that they are not fatal in the effort to make corporate entities accountable for human rights violations. The chapter seeks to show that application of the UN Framework will be a useful prerequisite for laying the foundation for the implementation of a Business and Human Rights Treaty in the future.
Chapter Three presents the Constitution of Kenya, outlining its horizontal provisions that make the Bill of Rights binding on juristic persons, and attempts to project the possible impact it will have in developing the business and human rights jurisprudence. The chapter begins by considering the inconsistent interpretation that courts have given to International Law under the 2010 Constitution, suggesting further development of the jurisprudence before International Law can be meaningfully integrated in the domestic law. The chapter then seeks to show that the
115 See Lopez op cit note 56 at 77; Deva op cit note 65 at 103.
public-private divide created by traditional constitutions is not accurate, arguing that the increase in the power of the modern corporation justifies their subjection to the bills of rights. The chapter reviews possible models of horizontal application, drawing lessons from the South African constitutional model, which is most similar to Kenya’s.
Chapter Four reviews the topic of corporate social responsibility. The chapter notes the importance given by many corporations, specifically in Kenya, to the notion of CSR, and the same time highlights the absence of a unified understanding of the duty. The chapter reviews Ruggie’s definition of the corporate responsibility to respect, and his view that it is acknowledged in the corporate social responsibility of the company. It begins by considering the fact that many corporations in Kenya do not make reference to human rights in their policies; they do not consider their human rights obligations as a topic in its own right, but rather as a component of their corporate social responsibility. The chapter seeks to demonstrate that CSR cannot be an absolute measure of a corporation’s human rights obligations by highlighting the differences in the concepts. It proposes the use of specific human rights language in company policies, and the use of corporate law to bring a human rights understanding to corporations.
Chapter Five discusses the first pillar of Ruggie’s framework, the state duty to protect which includes an obligation to ensure that third parties do not violate human rights. The chapter discusses the duty as involving offering guidance to corporations on what their responsibility comprises, which, as Ruggie proposes, should involve a mixed economy of approaches, voluntary and obligatory, that complement each other. The chapter reviews the Ratification of Treaties Act provided for under the Constitution of Kenya outlining the procedure for making and ratifying treaties. It highlights the practical challenges that arise from the Act’s requirements which might make it difficult to domesticate a treaty on business and human rights (if it existed), further supporting the case for the development of the domestic jurisprudence on business and human rights before negotiating a treaty on the same. The chapter also offers suggestions on what would constitute an ideal model for tracking and reporting human rights performance through formal public reporting, as a way for the state to ensure that corporations live up to their human rights obligations. A proposal is made to adopt the Global Reporting Initiative guidelines in preparing corporate reports.
Chapter Six discusses the corporate responsibility to respect, Ruggie’s second pillar in his Framework on business and human rights. The corporate duty arises from the acknowledgement
that the primacy of the duty of the state to protect against human rights violation does not in any way preclude the responsibility of business for its actions. The argument is made that defining the corporate responsibility to respect necessitates a shift away from the concept of shareholder supremacy. This will make it possible to consider other stakeholders who make a contribution to the business, and thus be concerned for their interests. The Chapter reviews the question which human rights are important for business, as some say it should be a limited category of business- related rights, and others opine that they should be responsible for all human rights. The chapter then considers the different positive facets of the corporate responsibility devised by Ruggie to counteract its apparent negative character, which will bring about a corporate culture respectful of human rights, thus making the effort of business entities to respect human rights sustainable.
Chapter Seven reviews the third pillar of the UN Framework, Access to Remedy for victims of corporate human rights violation. It appraises the different levels of remedial measures – operational or company level mechanisms, the non-judicial mechanisms (the KNCHR) and the judicial mechanism, the courts, and recommends the procedures to be followed in approaching the various means of redress. The chapter reviews the attitude that Kenyan courts have had in the past on the subject of human rights violations as this is most likely to affect future expectations on its approach. A proposal is made for amending the penal law of the country to make it possible to bring claims for human rights violations against companies by imposing on them a corporate criminal liability.
Chapter Eight presents the implication of the changes suggested by the UN Guiding Principles, and implementation of the 2010 Constitution on the corporate law of the country. The chapter proposes amendments and additions to particular laws to enforce the corporate obligation for human rights. It proposes amendment of director’s duties to require them to consider the interests of stakeholders in decision-making, including an explicit obligation to consider the human rights impact of company operations. Constituency Statutes, state laws in the USA which were enacted with the intent to codify social and community obligations of directors, are proposed as a model for the amendment of the Companies Act. Specific proposals regarding the Business Review are recommended, outlining specific areas directors should report on. The chapter also proposes coordination between departments and considerations necessary to align sectoral policies to the national strategy and the state’s international human rights obligations as expressed in its Constitution and in international law. This chapter further makes a proposal to
the Commission charged with implementing the Constitution to include a specific section on business and human rights in the Action Plan drawn up to implement the 2010 Constitution.
Chapter Nine concludes the study, summarizing the findings and recommendations of the research. In concluding this study, the chapter reviews the core arguments of the research and proceeds to make recommendations under the state duty, the corporate responsibility and access to remedy pillars of the business and human rights framework and proposes the way forward.
CHAPTER TWO
2. A DEFENSE OF RUGGIE’S APPROACH AND FINDINGS ON THE QUESTION OF