Background
Kenya is a member of the United Nations Human Rights Council (UNHRC) which, In June 2011, unanimously endorsed the UN Guiding Principles on Business and Human Rights (UNGPs) and called on all Member States to develop National Action Plans (NAPs) to promote the implementation of the UNGPs within their respective national contexts.
The UN guiding principles on business and human rights (UNGPs) reiterate existing obligations of states and other actors and provide the first globally agreed standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity.
The Guiding Principles set the baseline responsibility of all enterprises as respect for human rights wherever they operate. Beyond that, enterprises may voluntarily undertake additional human rights commitments.
The Guiding Principles apply to all States and to all business enterprises. transnational and others. regardless of their size. sector. location. ownership and structure. They are based on the UN Protect, Respect and Remedy Framework which recognizes the complimentary but distinct roles of the States and businesses to protect and respect human rights.
They have been endorsed by other business reporting mechanisms including: The African Commission on Human and Peoples Rights (ACHPR); The U.N. Global Compact; The Organization for Economic Cooperation and Development (OECD) and the European Commission.
The National Action Plan Formulation Process
In January 2015 during her second review under the Universal Periodic Review Process before the Human Rights Council, Kenya accepted recommendations to develop a national action plan on business and human rights to implement the UNGPs.
Kenya adopted the 5 Phases of developing a NAP given as a guidance by the UN Working Group on Business and Human Rights i.e. Initiation, Assessment and Consultation, Drafting, Implementation and Update. The first preparatory phase involved communicating and advocating for the development of the NAP and holding stakeholder consultations in order to come up with a well thought out and balanced National Consultative Steering Committee to guide the process.
In October 2015, the Office of the Attorney General & Department of Justice developed a concept paper whose objectives were to briefly highlight business and human rights challenges in the country and to seek requisite approvals to commence the development of a National Action Plan on Business and Human Rights. In April 2016 through a public statement issued by the Attorney General, Kenya officially committed to developing a national action plan that reflects issues of priority to business and human rights in Kenya. The development process has been spearheaded by the Office of the Attorney General & Department of Justice and the Kenya National Commission on Human Rights.
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:
1) Office of the Attorney General & Department of Justice
2) Kenya National Commission on Human Rights (KNCHR)
3) National Gender and Equality Commission (NGEC)
4) Ministry of Labour and Social Protection
5) Ministry of Energy and Petroleum
6) Central Organization of Trade Unions (COTU)
7) Kenya Human Rights Commission (KHRC)
8) Federation of Kenya Employers (FKE)
9) Kenya Private Sector Alliance (KEPSA)
10) Global Compact Network Kenya (GCNK)
11) Council of Governors
12) Office of the High Commissioner for Human Rights (OHCHR)
13) Institute for Human Rights and Business (IHRB)
Stakeholders' Consultations
As a first step, the National Steering Committee commissioned a national baseline assessment (NBA) that served to evaluate the current implementation of the UNGPs and relevant business and human rights frameworks. This was augmented by the Kenya Human Rights and Business Country Guide. The NBA was followed by policy dialogue forums held in Nairobi in October 2016 with stakeholders from Government, Businesses and Civil Society Organizations. Between November 2016 and February 2018 regional stakeholder consultations were held in different parts of the country. In each region, those consulted included officials in the National and County Government, business representatives, local civil society organizations and community members impacted by business operations in their respective localities. Additional consultations encompassed a national forum with indigenous people groups. There was due regard for the gendered impacts of businesses during the consultations, examination of each theme and in policy action formulation. The NBA coupled with the regional consultations were vital in the identification of thematic areas for the NAP.
Given the wide range of business-related human rights concerns, the NSC identified five themes, prioritised by stakeholders, as the focus of this NAP. These are: land and natural resources, revenue transparency, environmental protection, labour rights and access to remedy. Additionally, there was recognition that certain groups are disproportionately impacted by businesses. In this regard issues of gender, the situation of vulnerable, marginalised and minority groups such as persons with disabilities (PWDs), indigenous groups, were identified as cross cutting issues to be addressed under each of the themes. Subsequently, the National Steering Committee commissioned five thematic working groups drawn alongside the five thematic areas. The working groups were useful in refining the policy concerns and recommendations for the NAP. This NAP is a crystallisation of the National Baseline Assessment findings, the stakeholder consultations and the recommendations from the thematic working groups.