[Kictanet] Rights fulfillment goes beyond enterprise voluntarism

[alice at apc.org]

Apologies for cross posting

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Rights fulfillment goes beyond enterprise voluntarism

By Omusundi Maina



      T

he continued abuse of human rights by companies and castigation of lobbies 
that seek redress as a bane to enterprise is an indicator that our country 
is at the gallows.

            That companies must behave in an appropriate fashion is not new 
and cannot be wished away. What is new is the shift from targeting 
governments solely, to making human rights claims in relation to the private 
sector. There is a growing recognition that companies, too, have human 
rights responsibilities within their “sphere of influence”.

            But who should hold companies accountable for human rights 
abuses? A serious discussion of corporate responsibility inevitably includes 
the role of government. But we all remember that human rights protection in 
Kenya has been a continuous victim of political posturing.

            Further, as the global economy becomes more integrated, the 
power of states is declining calling for a new watchdog or leaving the whole 
gamut of adhering to the Global Compact. The Global Compact is a 2000 United 
Nations sponsored appeal which called for companies to commit themselves to 
respect nine core principles in relation to human rights, labour and the 
environment.

            It is an open secret that our government, for instance, has been 
unable or unwilling to take steps required to ensure that companies respect 
human rights even after self regulation has failed. For instance, the Del 
Monte case where dogs were let wild to maul children after stripping them 
naked and burning their clothes both the state and the company have a legal 
responsibility though in varying degrees.  But this has variance been 
occasioned by the shrouded continnum of legal duties that fall on states to 
regulate corporate conduct and duties that might fall directly on companies.

            Since companies operate through their human agents, the fines 
imposed on them are insufficient and it is time to hold the human agents 
more responsible.

            Back to the question of who will police errant companies. It is 
debatable whether trade unions are the key to unlock the rampant human 
rights abuses occassioned by companies since rights go beyond workers’ 
rights.

Trade unions have a limited mandate. Civil society organizations, like human 
rights NGOs, though taken by human rights violators as busybodies, have the 
mandate to deal with rights issues from a broader spectrum. In case they are 
errant there are specific channels to deal with them too.

            But that notwithstanding, company responsibility for human 
rights abuses remain an issue where the company itself initiated the abuse, 
and in situations where it colludes or is implicated in abuses committed by 
others, for example security firms.

            A company might be responsible because it has directly committed 
the abuse, in which case it would be considered the principal actor or 
perpetrator. This was the case with flower firms and the Export Processing 
Zones as well as captured in the research Manufacturers of Poverty released 
early in the year.

            In the Del Monte case, the company has a duty not to act 
negligently or carelessly towards people to whom it owes a “duty of care”. 
The company needed to take reasonable steps to avoid harmful acts or 
omissions. Some duties of care particularly those relating to safety are so 
important that they cannot be delegated to another.

            For Tiomin in Kwale, the company initially colluded with 
government to offer negligible compensation to Kwale peasants. The 
government further reneged on its duty of ensuring that before mining, the 
environment impact assessment is duly conducted. Its silence on the 
distorted value of land and the impact of titanium mining were not going to 
be known to the world were it not for civil society activities. It is common 
knowledge that the value of land has shot up by a significant proportion 
from the initial figures offered four years ago.

            The Del Monte and Tiomin cases illustrate different levels of 
corporate complicity. While that of Del Monte can be said to be indirect or 
silent that of Tiomin is loud and direct.

            It is therefore inevitable that NGOs will see their roles in the 
broader human rights spectrum to the chagrin of many unscrupulous 
entrepreneurs.

            Thus, it is time businesses and those who speak on their behalf 
understood that time for ineffective voluntary initiatives of compliance is 
past. Today, companies will be guided by bigger legal provisions that they 
must adhere.

This is the only way to beat the growing sense that voluntary codes alone 
are ineffective and that their proliferation is leading to contradictory 
efforts.

            Campaigns, consumer boycotts and voluntary codes of conduct all 
have a role to play. It is time however, to give serious attention to the 
role of clearly defined state law in ensuring that companies are uniformly 
accountable in relation to human rights. This will absolve lobbies blames 
that they selectively target certain groups.

            Companies too have a responsibility not just to its share 
holders for profits but also to the non-shareholders vide consumers, the 
workers and the wider society in which it carries its activities and thus 
signing our ever-disregarded memorandum of Understanding with one player is 
not enough indicator that they respect human rights in entirety.

Mr Maina is the Deputy Director of with Legal Resources Foundation