5 Estadios finales en el desarrollo grupal
ESTADIO 4: ESTADIO FINAL CONSOLIDACIÓN Y FINALIZACIÓN
Unlike other countries in Europe and elsewhere that have built upon the UN Guiding Principles to develop national plans, there appears to be a lack so far of concrete national action plans on business and human rights in African countries.224 This failure to devise national action plans or lack of interest in doing so both within governments and among business entities could be attributed to an ignorance of the existence of initiatives following Ruggie’s extensive research and proposals at the conclusion of his mandate.225 In fulfilling their obligation to protect against human rights abuse, states are expected to provide effective guidance to businesses to enable them respect human rights through their operations.226 Governments should work to ensure that companies and other business entities are alive to the impact of their operations so that they can adequately prepare to prevent or mitigate them.227 The process of developing a national framework will raise awareness of the pertinent issues in all the relevant sectors and amongst the stakeholders and provide the necessary guidance to government departments and agencies, civil society and rights holders.228
223 Ministry of Trade, Commerce and Industry, Ministry of Labour.
224 See http://www.ohchr.org/EN/Issues/Business/Pages/NationalActionPlans.aspx, accessed on 29 July 2015. The
only African country initiatives – for Ghana, Nigeria, Tanzania and South Africa are spearheaded by civil society or National Human Rights Institutes (NHRIs).
225 This was the general view expressed by African representatives at the African Civil Society Dialogue held in
Accra in November 2013. See African Civil Society Dialogue on the National Action Plans Project in Accra, Ghana (25 November 2013) Summary of Participants’ Observations at 1, available at
http://accountabilityroundtable.org/wp-content/uploads/2013/12/African-Civil-Society-NAPs-Dialogue-
Summary.pdf, accessed on 10 August 2014.
226 UN Guiding Principles op cit note 45 at 8, on the general state regulatory and policy functions. 227
Ruggie Report 2009 op cit note 44 para 120.
228 The Danish Institute for Human Rights (DIHR) and The International Corporate Accountability Roundtable
(ICAR) ‘National Action Plans on Business and Human Rights: A Toolkit for the Development, Implementation, and Review of State Commitments to Business and Human Rights Frameworks’ (June 2014) at 16.
The 2010 Constitution makes a clear case for the application of the Bill of Rights to companies: companies are thus expressly required to respect and uphold all the rights contained in the Constitution. The effort to implement the Constitution must therefore include proposals of what will be done to actualise Article 20(1) which binds corporations to the Bill of Rights. Without a conscious effort on the part of the government to find application of the provision binding legal persons to the Bill of Rights, if juristic persons are left unpunished for the human rights violations they commit or contribute to, the bill as espoused in the Constitution will in a considerable part remain good theoretical ideas confined to the boundaries of the paper they are written on. Without an effort on the part of government to ensure that corporations abide by the Bill of Rights as the Constitution provides, it will have failed in its duty to protect against the violation of human rights.
Despite the failure by government to consider the human rights obligation of business as an important topic in its own right, there have been efforts in other quarters to highlight this issue. The organ of state tasked with ensuring compliance with its human rights obligations, the KNCHR,229 in 2011 outlined proposals that the state and business entities should put in place to operationalise the Constitution.230 The proposals were contained in a report, the first of a series of reports intended to review the operationalisation of the Bill of Rights and offer proposals to aid policy makers and implementers in implementing the Constitution.231 The Commission acknowledged the binding nature of Article 20 of the Constitution on business enterprises, noting that it “unequivocally brings to all businesses operating in Kenya new constitutional responsibilities in respect of human rights.”232
The KNCHR observed that the Framework prepared by Ruggie on Business and Human Rights, and the UN Guiding Principles enjoined the Government to provide a roadmap for the application of the Bill of Rights to businesses.233 To this end, the Commission proposed the review of business laws such as the Companies Act and Partnership Act to infuse in them human rights principles and ensure that they complied with human rights requirements.234 It was noted
229
Section 59 (2)(g) of the 2010 Constitution.
230 See Kenya National Commission on Human Rights ‘Making the Bill of Rights Operational: Policy, Legal and
Administrative Priorities and Considerations’ Occasional Report (2011) Chapter 9.
231
Ibid, xi.
232 Ibid at 22. 233 Ibid at 106. 234 Ibid at 106, 109.
that the Companies Act was already under review and some improvements had been made, for example inclusion of a requirement for directors to consider the interests of employees, suppliers, customers and other stakeholders in decision-making.235 It was further proposed that the Government be cognisant of its duty to protect human rights when considering investment agreements, for example in the Export Processing Zones (EPZs) investment transactions where tax and labour law exemptions were given to attract foreign investors in the EPZs.236 In spite of the proposals given, the Government’s ultimate strategy and action plan to implement the 2010 Constitution did not include any of the suggestions made.237 Had the proposals made by the Commission been considered by the Government, they could have made a useful contribution in efforts to implement Article 20 of the Constitution.
The Commission for the Implementation of the Constitution (CIC) was set up under the 2010 Constitution to monitor the implementation of the Constitution and ensure that the spirit of the Constitution is respected.238 The CIC was mandated to “monitor, facilitate, coordinate and oversee the development of legislation and administrative procedures necessary to implement the Constitution”.239
Following a meeting between the CIC and the Ministry of Justice, National Cohesion and Constitutional Affairs on 15 June 2011, it was agreed that a National Policy and Action Plan for Human Rights be drafted to offer a guide to implementers of the Constitution.240 The Office of the Attorney General and the Department of Justice, which is the Ministry in charge of human rights, developed a National Policy and Action Plan for Human Rights241 in
235
Ibid at 106.
236 Ibid at 108.
237 Nothing in the Policy and Action Plan referred to the obligation that business enterprises would play in upholding
the Constitution.
238
Article 262 Section 25 (1) of the Sixth Schedule of the Constitution on ‘Transitional and Consequential Provisions’.
239 The Commission for the Implementation of the Constitution Act, 2010 (No. 9 of 2010) Section 4 (a)
240 See ‘The Kenya Gazette’ Vol. CXIV—No. 14 Nairobi, 17 February, 2012 Gazette Notice No. 2054 ‘The
Commission for the Implementation of the Constitution Second Quarterly Report on the Implementation of the Constitution (June 2011) 487. It is reported that ‘CIC held a meeting with the Ministry of Justice, National Cohesion and Constitutional Affairs on 15th June 2011 to discuss the roadmap for the implementation of human rights as provided in the Constitution. The meeting agreed that the National Policy and Action Plan on Human Rights will be the guiding tool for implementers and in the final stages need to take note that human rights are cross-cutting and therefore applicable to all implementers. In this regard, the National Policy and Action Plan on Human Rights needs to be designed to ensure consistency with the Constitution and involve all implementers and be the reference tool on human rights in all sectors.’
241 Office of the Attorney General and Department of Justice ‘National Policy and Action Plan for Human Rights’
Unnumbered Sessional Paper of 2013 available at http://justice.go.ke/images/downloads/Sessional-Paper-National-
consultation with the KNCHR242 to operationalise Chapter 4 of the 2010 Constitution, with the objective of making the wide array of human rights it contains accessible to all.243
The National Policy and Action Plan on Human Rights was developed following consideration of best practice examples from other countries and wide consultations with stakeholders such as civil society, Faith Based Organisations and government agencies. The public expressed their views on what was of importance to them and the National Policy and Action Plan was seen as genuinely reflecting national priorities.244 The document provided a “comprehensive and coherent framework that elaborates broad human rights principles to guide government and other actors in carrying out programs, strategies and plans that will enhance the realisation and enjoyment of rights by the people of Kenya”.245
Development of the Action Plan for human rights was motivated by the realisation that the inability to attain the desired human rights impact in the past was caused by the lack of a “comprehensive framework [that would] create cross-sectoral and cross-agency collaboration”.246
The Action Plan thus purported to offer a comprehensive and coherent framework bringing human rights principles into national development, planning and implementation across all sectors.247 The Action Plan highlighted the priorities of the state for the following five years and was to guide government ministries and departments, the law makers and the Judiciary in their actions and decisions relating to human rights.248 The National Policy and Action Plan was expected to provide the basis for the people to evaluate the national and county governments and hold them accountable for the realisation of their human rights.249
The identification of priority areas of focus for the Action Plan was further premised on a baseline survey on the status of human rights in Kenya, conducted in 2005.250 The Survey highlighted gaps in the effective realisation of human rights and made recommendations of what
242
The UNDP was also involved in the consultations to develop the Policy and Action Plan. See UNDP – Mainstreaming Human Rights in Development: Stories from the Field (June 2013) Chapter on Kenya: Translating Kenya’s Rights-Based Constitution into Practice.
243 Refer to CIC 2nd Quarterly Report p21. See also the UNDP Report, ibid, at 21. 244
UNDP Report op cit note 167, 27.
245 Ibid at vi. 246 Ibid. 247 Ibid at vi – vii. 248 Ibid at 1. 249 Ibid at 2. 250 Ibid at 8.
could be done to remedy the situation.251 The responsibility of business for human rights was not one of the recommended areas. Perhaps a reason for the omission to say anything of the obligation of business is because the baseline study was conducted in 2005, prior to emergence of the heightened international debate and deliberations on business and human rights via the United Nations Special Representative’s mandate, which only began in that year. Of interest also regarding the attitude of Government is the fact that in a 2014 report highlighting the State’s compliance with the ICESCR, the only reference made of compliance by business with human rights is the signing by many businesses of the Code of Ethics for Business, pursuant to the provisions of the Global Conduct.252 Nothing is said of the efforts made to implement the UN Guiding Principles on Business and Human Rights which were operational by that time.
In the quarterly report for the period after the decision to draft the Action Plan, the CIC noted that the National Policy and Action Plan was one of the policies set to be audited by the Commission in 2012 to ensure that it complied with the “letter and spirit of the Constitution as well as the integration of human rights.”253
When the Action Plan came for review in the CIC, it was rejected.254 The main reasons given for its rejection were its failure to reflect the rights- based approach contemplated in the Constitution, and that the methodologies adopted in preparing it gave precedence to international instruments over the Constitution.255 It was also rejected for not giving importance to the new structure of government where counties were expected to play a critical role in the implementation of human rights.256
Among the recommendations given to the Commission for the revision of the Action Plan were that it outlines all the rights enumerated in the Constitution and provide the Government position regarding their implementation; that the Action Plan be cross referenced to the Vision 2030 Development Policy as a guide to implementers of the Policy; that it outlines the approaches the national and county levels of government would pursue to uphold each right; also
251
Ibid.
252 United Nations Committee on Economic, Social and Cultural Rights ‘Consideration of reports submitted by
States parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights’ Combined second to fifth periodic reports of States parties due in 2013 E/C.12/KEN/2-5 (26 February 2014) para 27.
253 The Kenya Gazette’ Vol. CXIV—No. 14 Nairobi, 17th February, 2012, Gazette Notice No. 2055 the
Commission for the Implementation of the Constitution third Quarterly Report on the Implementation of the Constitution (July–September 2011) 514.
254 Ibid at 550. 255 Ibid. 256 Ibid.
required was an elaboration by the Government, as the bearer of the “bulk” of the obligations relating to human rights, of what it perceives the Bill of Rights demands of it, including expected standards to be met.257 On the basis that the Constitution binds all state organs, it was proposed that the Action Plan should identify the state actors that bear the duties for the different rights; it was further proposed that the Action Plan incorporate the underlying fundamental constitutional values and principles and other values highlighted in the Constitution.258 Additionally, the CIC directed the Ministry to consider: the need for (i) broad formulation of the government‘s position and what is to be pursued with respect to each right; (ii) Constitutional obligations and international obligations relating to the rights; (iii) relevant legislation in [listing] relevant laws and a plan for legal reform; (iv) designated implementers; (v) broad statement on challenges and how these are to be addressed; (vi) resources (including institutional and human) and budgetary requirements.259
Nothing is mentioned in the subsequent reports of the CIC about the progress made, if any, to the proposed amendment of the National Policy and Action Plan. In the Quarterly Report for the Period April to June 2012, under the sub topic “Engagements with Ministries on the effective implementation of the Constitution” the Commission merely noted that:
[The] Ministry of Justice, National Cohesion and Constitutional Affairs is the Ministry in charge of constitutional matters and a partner with CIC on implementation matters including procedures and deadlines for enactment of Bills under the Constitution. The Ministry is also coordinating the national civic education programme on the Constitution and is also the ministry in charge of human rights having spearheaded the development of the National Policy and Action Plan on Human Rights.260
No further work on the Policy and Action Plan was brought to light. The conclusions/recommendations formulated during the interactive dialogue during the periodic review of Kenya held by the HRC 19-30 January 2015, make numerous repeated calls for Kenya to finalise the process of adoption of the national policy and action plan for human rights, and to ensure its full operationalisation.261 However, assuming that the Policy and Action Plan will be
257 Ibid.
258
Ibid.
259 Ibid
260 The Kenya Gazette Vol. CXV—No. 73, Nairobi, 10th May, 2013 Gazette Notice No. 6465 Quarterly Report for
the Period April to June 2012, p 2701
261 See A/HRC/WG.6/21/L.7 Human Rights Council Draft report of the Working Group on the Universal Periodic
Review – Kenya (26 January 2015) Working Group on the Universal Periodic Review Twenty-first session Geneva. Note repeated recommendations by different parties in paras 5.6, 5.13, 5.14, 5.22, 5.23 and 5.25.
amended and re-drafted following the indications of the Commission, the critique of the policy document for failure to consider business and human rights as a field to monitor and ensure compliance with the Constitution still stands. Nothing of the Commission’s elaborate recommendations for the revision of the National Policy and Action Plan touches upon business entities and their obligation under the Constitution to uphold human rights. Although the reality remains to be seen, it is unlikely that a revised draft of the Policy and Action Plan would include provisions on the role of business entities in the implementation of the Constitution.
5.6. Conclusion
Following the observation that countries generally and Kenya in particular lacks a coordinated response in dealing with the question of business and human rights, this Chapter has proposed the application of the UN Framework and the UN Guiding Principles on Business and Human Rights to guide the state in executing its duty to protect against corporate violation of human rights. Only when rights are not only rhetorically asserted but can be demanded as legal entitlements will human rights law become an effective system for protection of human dignity. It makes no sense to assert rights which cannot be claimed or guaranteed; existence of a right means there is a duty holder who bears the responsibility of ensuring the right is secured.262The Human Rights Council in a Resolution dated 23 June 2014 recognised the role that national legislation can play in the protection, promotion, fulfilment of and respect for human rights, at the same time expressed concern that weak national laws and implementation could not serve to mitigate the negative impact that human rights can have.263 Corporate laws shape what corporations do and how they do it – because of this, corporate laws can and should be used to offer a guide to corporations on human rights expectations. The Companies Act of Kenya can be applied to give guidance and hold corporations accountable to their human rights obligations if applied as proposed in more detail in Chapter Eight.
262 Referring to the obligation of states with regard to rights generally, before the internationalisation of the concept
of human rights and the use of the phrase as we know it now, it was decided in the Spanish Zone of Morocco Claims case that: …responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. Responsibility results in the duty to make reparation if the obligation in question is not met. See Reports of International Arbitral Awards (Recueil Des Sentences Arbitrales) Affaire des biens britanniques au Maroc espagnol (Espagne contre Royaume-Uni) 1er mai 1925 Volume II pp. 615-742 – Report in French; also cited in Manfred Lachs ‘Some Reflections on the Contribution of the International Court of Justice to the Development of International Law’ Syracuse Journal of International Law and Commerce [1983] 10(2) fn 44, referring to state responsibility for reParations as a well settled principle of international law.
The National Policy and Action Plan for Kenya was drafted after the release of the UN Guiding Principles, and it would have been expected that reference would be made in to the effort being made to comply with the Guiding Principles. Considering the size of the business sector, in terms of revenues generated, people employed, livelihoods sustained and the immense power that this sector has to impact individuals’ human rights, it is a grave oversight not to include any directives relating to business entities in a national Policy and in the accompanying