Businesses’ burden during tragedy

An aerial view of Patel dam in Solai, Nakuru County. The dam collapsed on May 9, 2018 killing more than 40 people. PHOTO | FILE | NATION MEDIA GROUP

What you need to know:

  • Article 21(1) of the Constitution recognises the State’s obligation to protect human rights violations by third parties and business

  • This tragedy, though unfortunate, should serve as a wake-up call to all other businesses to assess their impact on human rights.

Businesses invest and produce goods and services that can improve living standards but also destroy livelihoods, exploit workers and displace communities.

When they do harm, where can the affected people turn for redress?

For many communities, it is an uphill battle to hold businesses accountable mainly due to lack of a clear recognition of the legal obligations of businesses.

Fortunately, the Constitution has the relevant provisions for human rights. The United Nations Guiding Principles on Business and Human Rights (UNGPs) also recognise the responsibility of business on human rights.

Based on that, Patel Coffee Estates Limited should be held accountable for the human rights harm suffered by the Energy and Nyakinyua villagers following the collapse of its dam on the night of May 9.

DESTROYED PROPERTY

The dam released an estimated 70 million litres of water downhill. The water and sludge left 47 people in the villages dead and 2,000 homeless and destroyed property and infrastructure worth millions of shillings.

This tragedy has had an adverse effect on every aspect of life of the villagers, who have to rebuild their lives amidst burying their loved ones. The government and well-wishers stepped in with humanitarian support.

But it should not end there. Investigations must be carried out covering the period before disaster struck and what the company and the authorities know, or ought to have known, and any action that was taken.

Patel erected the dam, which was under its full management and control. As such, all operations of the company are subject to applicable laws and regulations enforceable by State institutions such as the National Environmental Management Agency (Nema) and Water Resources Authority (Warma).

BILL OF RIGHTS

Article 20(1) of the Constitution provides that “the Bill of Rights applies to all law and binds all state organs and all persons”. The courts have established that the Bill of Rights is enforceable against private entities, holding that “private power as much as public power has the capacity to oppress”.

The government and the company had a role to play in protecting and respecting the rights of those affected.

The UN in 2008 adopted the Protect, Respect and Remedy framework on business and human rights that rests on three core principles: State duty to protect citizens against human rights abuses by third parties, including business; corporate responsibility to respect human rights; and the need for governments and businesses to ensure effective access to remedies.

PURSUIT OF BUSINESS

The UN Human Rights Council in 2011 unanimously endorsed 31 UNGPs, which are an authoritative guide on business conduct in relation to human rights. Kenya is drafting a National Action on Business and Human Rights based on these principles.

Meanwhile, Article 21(1) of the Constitution recognises the State’s obligation to protect human rights violations by third parties and business, which is fulfilled by enacted laws and regulations for conducting business; enforcement mechanism of such laws and a process of redress to victims for the harm caused when such laws are violated in the pursuit of business.

DAM TRAGEDY

The Director of Public Prosecution has ordered an investigation into the dam tragedy, which will, hopefully, ensure accountability and redress for the villagers.

Businesses should not infringe on the rights of their employees, communities around them, customers and the society. In case of adverse effects as a result of its activities, the business must redress the harm.

So how does a business know it’s infringing on human rights? The UNGPs require businesses to be aware of, prevent and address adverse human rights impacts through due diligence. They ought to proactively consider the potential implications of their activities before and during their operations.

IMPACT ASSESSMENTS

Businesses need to regularly conduct human rights impact assessments or integrate human rights into environmental and social impact assessments.

In respect to Patel, an assessment of the dam in the context of the then-ongoing heavy rains could have revealed the grave danger a potential bust posed to the surrounding communities. The next step would have been to act on those findings to avert the danger.

This tragedy, though unfortunate, should serve as a wake-up call to all other businesses to assess their impact on human rights — for experience shows that businesses can, and do, infringe on human rights when the focus is more on profitability than the impact of their activities on human rights.

Ms Kimotho is an adviser on human rights and business at The Danish Institute for Human Rights. [email protected]