Let’s raise our sights from what Kiraitu Murungi called the “mud of politics” to what the Constitution is really about. Not comfortable lives and illusions of power for politicians, but a decent life for all Kenyans.
One of the parts of the Constitution most directed towards that decent life is Chapter Four: The Bill of Rights
But business and human rights – what do they have to do with each other? Are we talking about “human” rights FOR business or rights respected BY business?
Last year, a team from a United Nations Working Group on human rights and transnational corporations and other business enterprises visited Kenya. This year, it submitted its report to the Human Rights Council. The Working Group is concerned with the abuse of powers by big international business, but also with business more generally.
BUSINESS EMBRACES ‘RIGHTS’
Business, you might think, is about making money — what have rights to do with it? I was mildly amused to read a lecture by the chief executive of a major Kenyan company on constitutionalism and the rule of law.
For him the interestS lay in “The origins of modern economic prosperity can be traced to the development of property rights and individual rights in England …” And “.. property rights lead to enhanced economic prosperity which enhances the self-expression of individuals and these individuals, in turn, strengthen the democratic institutions by participating and holding the leaders to account.”
A right to property is a controversial matter. For some – as you see – it is crucial. For others “property is theft”. For others, it is a very complex matter: Does a right tend to reinforce existing unequal distributions of property? South Africa is still wrestling with this. For these sorts of reasons, the two main human rights treaties (the International Covenants on Civil and Political Rights and on Economic Social and Cultural Rights) contain no recognition of a right to property. Our Constitution does.
But “business and human rights” is about whether business is obliged to respect human rights, not how it benefits from human rights.
Is this the same thing as “corporate social responsibility”? Some people would argue that CSR is really public relations. Others would tell you that it allows the government to escape from their responsibilities. On the other hand, some would take the view that it is a valuable aid to achieving business respect for rights. We can all see that it would be better if businesses willingly acted in a way that enhanced human rights.
I would suggest that there are two differences (at least). The first is like the difference between charity and respect for rights. Charity puts the emphasis on the giver. “Charity”, it is said, “honours the giver but humiliates the recipient”. A human right is just that – something that you are entitled to, part of being human.
Second — and linked — generosity is a matter of choice. A company engaged in CSR is making a choice, and no doubt one that is dictated by self-interest to some extent. Respect for rights is an obligation, not a choice.
Our Constitution, unusually, does deal with business and human rights. It says that not just government, but everyone, is obliged to respect human rights. That includes business – as well as all the rest of us. It recognises rights to health, food, water, education and housing – as well as more familiar rights like those to speech, association, assembly and physical liberty. Other rights include to decent working conditions, and to a clean and healthy environment. The right to equality, and to be free from discrimination (because of sex, age, tribe, religion, disability or any other personal characteristic) is important – especially since we have no specific equality law.
The point on economic, social and cultural rights is important because companies’ activities are perhaps more likely to affect these than they are freedoms of speech, assembly and liberty. Think particularly of evictions, or behaviour affecting water supplies, or food-growing land. The ordinary law says that a manufacturing or processing company is liable to us only if it has been negligent (and we must prove that) unless we have a direct contract with it. So we can’t sue it if we bought the product from someone else, or received it as a gift unless we prove negligence. Under the right to food – especially coupled with the constitutional right of consumers – we could claim against the producer of harmful food even if we did not buy the food.
The government must do more than not breach our rights. It must protect our rights from others – including by passing laws restraining business from rights-damaging behaviour, and enforcing those laws. So if it fails to do so, and business behaves in a way that harms our rights, we may be able to hold THE government legally liable. It must also promote human rights (by education, incentives and persuasion).
The Constitution really underlines the differences between rights and generosity: You may complain about the withdrawal of generosity, but you have no legal remedy. For failure to respect or protect a right there is a remedy: including going to court or going to a human rights commission. Even if you do not plan to go to court, the possibility can be a useful bargaining chip.
KENYA’S REPORT CARD
The UN Working Group commented that some big businesses in Kenya were aware of their duties but some (not all) smaller and middle-sized ones less so. It found that government contracts that involved cleaning or security did not include enough funding to enable the minimum wage to be paid.
It learned of workers dismissed for joining unions, of child labour, sexual harassment in flower farms, and excessive use of casual labour – effectively without rights. Evictions and lack of land security, especially for community land, were identified as problems.
The Group’s concrete proposals included that the government should do more to ensure that state-owned businesses respect rights, giving guidelines on achieving, monitoring and reporting on rights. The government should recogniSe and encourage informal enterprises (source of most employment for Kenyans) that respect human rights.
International guidelines on evictions (adopted by the Kenyan courts) should be fully reflected in our law. The National Land Commission should support communities when they negotiate with companies about land. A disaster like the Solai dam showed the need for effective government regulation, and company respect for rights.
Around the same time, the Kenyan Government finalised its National Action Plan on Business and Human Rights. This includes a number of sensible sounding intentions. They include Human Rights Due Diligence: Just as companies explore the risks before they embark on a new business or make a new investment, they should identify possible impacts of what they do on human rights, take measures to prevent them, and explain how they address the impacts. The Plan says this should be done before licences are given to businesses, and generally government will require business to adopt human rights policies.
The government says it will strengthen the labour inspectorate department, use public procurement to promote human rights, disseminate human rights guidance for businesses, provide training and support on business obligations in respect of human rights to the judiciary, administration, and oversight organs.
It will produce 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
Let us hope these good intentions prove more than a well-meaning response to a high-profile UN scrutiny. Many are to do what the law, and Constitution, already require.
Business (and government) can make use of the UN Principles on Business and Human Rights (available in Kiswahili, too). And locally, the Kenya National Commission on Human Rights does some training. And the Kenya Human Rights Commission produced a Guide for business in Kenya on how to ensure they comply with human rights.
By Jill Cottrell Ghai
This article was first published by the Star Newspaper on