17 Jan 2020 - by Andrew MacKay

The East Africa Law Society’s Annual Conference: Promoting Responsible Business Across the Region

An interview with Commissioner Jedidah Wakonyo Waruhiu of the Kenya National Commission on Human Rights.

A4ID’s regional partner, the East Africa Law Society (EALS), hosted their Annual Conference on 4-9 November 2019 in Kigali, Rwanda. The conference offers the opportunity for lawyers from across the East African Community to celebrate cross-border development and examine how the law can be harnessed to further regional economic development. This year A4ID’s ROLE UK Programme supported several sessions on responsible business and the role of lawyers in advancing business and human rights’ principles, in collaboration with EALS, the international law firm, Clifford Chance LLP and the Kenya National Commission on Human Rights.

During the conference A4ID’s Project Lead – Africa, Patrick Karanja, sat down with Commissioner Jedidah Wakonyo Waruhiu of the Kenya National Commission on Human Rights to discuss progress on the adoption of the UN Guiding Principles on Business and Human Rights in the region. As an Advocate of the High Court of Kenya, Commissioner Wakonyo Waruhiu is an experienced human rights’ defender. With more than 25 years’ experience in international human rights law, she has worked closely with the Kenyan judiciary and the Kenyan Prisons Service to improve access to justice within the region.

Introducing the UN Guiding Principles on Business and Human Rights

The UN Guiding Principles on Business and Human Rights are a set of guidelines that underpin the obligation of business enterprises to comply with and respect human rights and individuals’ freedoms. Their importance to sustainable development is paramount as they help businesses to avoid negatively impacting the lives of vulnerable and marginalised people. By adhering to the guidelines, businesses are able to function ethically, whilst retaining their market objectives. Corporate lawyers play a key role in ensuring that enterprises follow these guidelines, especially in developing countries, where local communities are often exploited.

As State members of the East African Community develop, there is the potential that extractive industries, such as oil, gas and mining, and disruptive infrastructure, such as roads and railways, will infringe on the human rights of communities in the region, disregarding business and human rights’ principles in the pursuit of economic gains. Businesses should address the adverse human rights impacts with which they are involved and, when business-related abuses occur, those affected should have access to effective remedy.

Remarking on the success of A4ID’s sessions during the EALS conference, Commissioner Wakonyo Waruhiu was pleased with participants’ increased awareness of business and human rights’ principles compared to the previous year’s conference. She explained that it was clear that participants were beginning to build their understanding of the importance of business and human rights’ principles for development by asking, “What can we do as lawyers? What can I do in my institution? How do I go about it?” This is an important step for responsible business practices in East Africa and indicates the changing paradigm and thinking of corporations and corporate lawyers in the way they operate and run their businesses to prioritise human rights.

In a region, “where the reality is very clear: that businesses are not doing their due diligence in terms of human rights”, Commissioner Wakonyo Waruhiu commented that it is encouraging to see that attendees at the EALS conference are starting to change their mindsets. However, she noted that more can be done to “deepen the discussions on business and human rights and the important role that lawyers in each of the partner states play”. Corporate lawyers have a responsibility to guide the business community to find a balance between the rapid economic development of East African countries and a demonstrable respect for human rights.

Embedding Responsible Business Practices

The work of A4ID and its partners to establish awareness of the UN Guiding Principles on Business and Human Rights among the region’s lawyers has already had a significant impact, but Commissioner Wakonyo Waruhiu now wants to see a wider, bottom-up approach to build upon this awareness and start improving corporate standards. In states that have Continuous Professional Development programmes, such as Kenya, Commissioner Wakonyo Waruhiu recommends continuing to work closely with local bar associations and the legal community. As corporations and corporate lawyers become increasingly aware of the need to respect business and human rights principles, organisations such as the Law Society of Kenya, can work closely with businesses and legal communities to develop partnerships, improving due diligence on human rights and responsible business.

There is also a need to collaborate with national human rights institutions in every country in East Africa. Commissioner Wakonyo Waruhiu emphasised the important role that A4ID can play in working with national human rights’ institutions to advise on processes such as Universal Periodic Reviews and the development of National Action Plans to integrate actions on business and human rights’ principles at the national level in East African Community member states. The Kenya National Commission on Human Rights has played a key role in working with the Attorney General’s office to develop a National Action Plan on Business and Human Rights, which is now awaiting cabinet approval. Other East African states – particularly Tanzania and Uganda, which have already begun the process of developing National Action Plans – should learn from Kenya’s experience.

The challenge is to ensure that East African country governments recognise that business and human rights’ principles are a priority, alongside education, health and other development related issues. The Kenya National Commission on Human Rights found that it was only after undertaking a Universal Periodic Review to reflect on the status of business and human rights in the country that the government committed to starting the process to develop a National Action Plan on Business and Human Rights.

Commissioner Wakonyo Waruhiu also acknowledged that, “peer-to-peer learning is very important”. Forums, like the EALS 2019 conference, are helping to connect experts from different East African communities. Experts in Rwanda, for example, are able to learn from the experiences of experts in Uganda, and vice versa, to build local capacities and local confidence. Cross-border partnerships can help to drive change and uptake of responsible business practices because, “whatever happens in Uganda has a significant impact on me in Kenya,” Commissioner Wakonyo Waruhiu explained.

Although Commissioner Wakonyo Waruhiu commended the progress that has already been made and the promising outcomes of A4ID’s events at this year’s EALS Annual Conference, she stressed that more needs to be done if business and human rights issues are to become a high priority for corporations, corporate lawyers and governments in East Africa. Commissioner Wakonyo Waruhiu encouraged further capacity building of the legal community, “that way we will begin to build a pool of human rights’ practitioners… and drive the human rights’ agenda into the thoughts of the corporate community.”