Government commitment crucial in development of Kenya’s first plan to enhance business respect for human rights

In February 2016, then attorney-general of Kenya, Githu Muigai, made a statement committing the Kenyan government to develop a national action plan on business and human rights. The statement came a year after Kenya accepted a recommendation from Norway during the Universal Periodic Review (UPR) to develop a national action plan on business and human rights. Thus, Kenya has become the first African country to develop a draft national action plan on business and human rights.

When done right, national action plans on business and human rights are an important stepping stone for a state to provide a smart mix of hard and soft approaches (including laws, policies, regulations, guidance and training) needed for companies to meet their responsibilities under the UN Guiding Principles on Business and Human Rights.

“Experience from other African countries seeking to develop national actions plans on Business and Human Rights shows that state commitment is crucial when developing a national action plan. The Kenyan government’s direct involvement in and support for the national action plan has been key to its successful development, particularly, in attracting stakeholder and rights-holder confidence and participation in the process,” says Andrew Odete, an Adviser in the Human Rights and Business Department at the Danish Institute for Human Rights, as the Institute publishes a case study on the development process of Kenya’s first national action plan on business and human rights.

The case study seeks to provide insights and lessons for other countries intending to develop a national action plan on business and human rights. 

The government and the human rights commission as key actors

The process in Kenya was led by the Kenyan government through the State Law Office and Department of Justice with support from the Kenya National Commission on Human Rights. A national steering committee composed of 13 institutions from government, state watchdogs, private sector organisations, civil society organisations and the UN was the decision-making and coordinative organ in the process resulting in an inclusive process where questions brought before the national steering committee were decided through consensus. 

“The central role played by the Kenyan government in the development process of the national action plan yielded important benefits. It signified the official commitment by the government to develop a regulatory framework for business and human rights in Kenya and made it easier to secure the participation of relevant stakeholders,” Odete explains. The Government provided crucial information and data and technical expertise from across government ministries and agencies.

Through the Department of Justice and Office of the Attorney General, the Government, working hand in hand with the Kenya National Commission on Human Rights (KNCHR), also provided secretariat support services for coordinating the consultation processes.

“The participation of the Kenya National Commission on Human Rights imbued the process with credibility since the commission has a dual existence as an independent state watchdog institution on the one hand and a state institution with official advisory mandate over human rights, on the other hand,” says Odete.

The process challenged by lack of government funding

However, the process also experienced some challenges.

Firstly, there was a shortage of financial resources. As a solution, funds were raised through development partners, including the Norwegian Embassy in Nairobi, Diakonia and the Danish Institute for Human Rights, through project funding from the Swedish International Development Cooperation Agency (Sida) and the Danish International Development Agency (Danida), among others.

Secondly, while consultations with rights-holders and stakeholders were extensive, in certain instances, they did not adequately address the nuanced positions and interests of the different rights-holders and stakeholders within a number of these groups. This may have been, in part, because of the limited resources available for the consultative processes.

“These challenges point to the need for governments to allocate appropriate levels of funding for the development of national action plans,” says Andrew Odete.

In addition, although there was stakeholder participation in the NAP development process, this process was not leveraged by stakeholders and rights-holders as a rallying cry on business and human rights issues or as an opportunity to shine a light on and address ongoing business related human rights violations. This may have deprived the process of the political capital required to develop strong sectoral, stake-holder or rights-holder led movements and consciousness for advancing human rights in the context of business. 

Lastly, the national action plan has been criticised for adopting – in certain instances – passive language devoid of firm obligations and commitments for state and businesses. This has been attributed to the need to achieve a sustainable working consensus for implementing the policy.

The Kenyan national action plan is yet to be officially adopted by the Kenyan cabinet.