Implementing the National Action Plan on Business and Human Rights- The pathway to business respect for human rights

The approval in February 2021 by Cabinet of the National Action Plan on Business and Human Rights, culminates a thorough process that began in 2015 following a recommendation made during Kenya’s Universal Periodic Review in Geneva. Kenya became the first country in Africa to both initiate the development of this policy and to complete it. This was followed closely by Uganda.  This places Kenya among a short list of countries that have developed a National Action Plan (NAP) on business and human rights and hence domesticating the United Nations Guiding Principles (UNGPs) on business and human rights.

 Effort should be made so as to leave no-one behind in the protection against human rights abuses by businesses and to offer remedy where human rights abuses are so occasioned. To ensure this, all stakeholders must prepare to play their respective roles for the successful implementation of NAP.  The question is how can this be achieved?

First and foremost, those stakeholders who are playing the role of disseminating and creating awareness must first of all develop a common understanding of the policy so that they do not disseminate conflicting information on NAP and its content. This means that they must develop a common interpretation and language of the policy, akin to having the same curriculum for the trainings/awareness programmes they intend to roll out.

Second, dissemination should aim to create ownership of the policy. While efforts were made to include every stakeholder through an inclusive and wide consultative process, the implementation committee should aim to expand stakeholder outreach during dissemination. Since most members of the NAP Steering Committee were representative organisations, they need to promote the policy among their membership so as to gain ownership.

The other critical component would be development of a simplified or popular version of the NAP for all actors to engage. This includes translation of the same into Kiswahili for a wider reach - especially the general public and the informal sector which dominates the business landscape in Kenya.   The United Nations Guiding Principles on Business and Human Rights stipulates that the principles apply to all businesses irrespective of size, ownership, operational context or structure.

In order to get acceptance of the NAP by all businesses, there is need to invest time and resources in dispelling the fear that NAP is meant to introduce new legal requirements for businesses and hence is unfavourable to them. This perception is contrary to the content and intent of UNGPs and by extension NAP. In their preamble, the UNGPs are categorical that they do not “create any new international law obligations, or limiting or undermining any legal obligations that a State may have undertaken or is subject to under international law with regard to human rights”.

Businesses (through their structures) should understand that the NAP is a guiding policy on the conduct of business and it has benefits that would significantly enhance performance of businesses in terms of profits, operational efficiencies and sustainability. For example, on the labour front, it has been demonstrated that businesses that treat their workers with dignity and enhance their welfare, save considerably on absenteeism, pilferage, lethargy and bad brand image and hence save on the attendant costs which eventually improve their bottom lines.  Businesses that exercise due diligence in their interactions with communities and the environment gain the social license to operate and hence reduce the costs caused by project stoppages as a result of community demonstrations, boycott of goods and services and security breaches.

Shareholders/investors are reluctant to put their money in businesses that have reputation of human rights abuses. Therefore, NAPs offer a great policy framework to assist businesses to comply with their responsibility to respect human rights and hence avoid the pitfalls that come with human rights abuses.

Consequently, the NAP implementation process should foster dialogue amongst stakeholders so as to reduce misperceptions about the policy. The relationship between human rights and business should be understood as complimentary and not antagonistic. The National Action Plan on business and human rights aims at fulfilling this. In any case it is not a fixed policy but rather an evolving one, with an inbuilt review mechanism through which stakeholders are able to apply international and regional human rights instruments, principles and standards within the national context.

By James Mwenda- Assistant Director, Economic Social and Cultural Rights Division, KNCHR