Apologies for cross posting ----------------------------------------------- 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