sharing in governance of extractive industries
On August 16, 2012, 34 rock drill operators from Lonmin Plc; a South African platinum mining company, were allegedly gunned down by police officers at Marikana.
Ten workers and two police officers died in the ensuing conflict a week later. Local companies may have watched the news breaking on Aljazeera or CNN and thought, ‘‘well this can never happen in Kenya’’.
Think again, because the Marikana massacre can happen in Kenya. Let us look at some socio-economic issues that have been attributed to the Marikana massacre.
They include unresolved historical injustices related to the apartheid and post apartheid regimes, a trigger-happy police force quick to protect ‘‘property’’ and not life, callous and inflammatory speeches by trade union leaders, a disconnected trade union leadership, the presence of a weak regulatory system by both the national and municipal governments, and a company management isolated from workers’ lives.
So let us do some introspection. Kenya’s police force has a reputation for using excessive force. A plethora of evidence exists — from civil society reports to the United Nations Special Rapporteur on Extra Judicial Killings report by Dr Philip Alston.
The role of trade union leaders to incite workers to engage in illegal strikes is also well documented in Kenya, one need look no further than mechanisation attempts by large tea estates.
Kenya is also not short of historical injustices, especially in areas where the extractive sector is concentrated. These include Turkana, Mandera, Wajir, Kwale and Lamu. In addition, these areas have high levels of insecurity attributed to a proliferation of small arms, bandits, cattle rustling and alleged presence of Al-Shabaab training camps.
Companies’ responsibility to respect human rights and implementation of social investment or corporate social responsibility are important issues.
In June 2011, the United Nations Human Rights Council endorsed the Guiding Principles for Business Enterprises.
The document aimed to operationalise the Protect, Respect and Remedy principle which is based on three pillars — the State’s duty to protect against human rights violations including by third parties such as business enterprises; corporate responsibility to respect human rights which requires companies to carry out human rights due diligence; and lastly, access to remedial mechanisms by victims of corporate related human rights violations.
The Guiding Principles, which are global and voluntary, require companies to respect human rights in their operations; mitigate potential human rights risks; carry out human rights impact assessments; develop procedures to manage human rights impacts if and when they occur; express commitment to human rights by developing a policy endorsed by the board; communicate to stakeholders how human rights issues are being addressed; and lastly have an effective grievance mechanism.
The Guiding Principles are receiving wide support. The International Finance Corporation (IFC) in its 2012 Policy on Environmental and Social Sustainability acknowledges the responsibility of companies to respect human rights. Industry associations in the oil, gas and mining sectors are working towards achieving the Guiding Principles.
Kenyan companies are also bound by the Bill of Rights in the Constitution. What this means for businesses is that they have a responsibility to respect human rights and fundamental freedoms guaranteed in Chapter Four.
These rights range from non-discrimination, freedom from torture, slavery and forced labour, access to information, economic and social rights such as food, adequate housing, health and water; labour relations, consumer and environmental rights.
The Constitution provides remedial measures to people for perceived infringement or threatened enjoyment of rights and fundamental freedoms guaranteed in the Constitution under Article 22, while Article 23 empowers the High Court to hear and determine rights violations including corporate related violations.
Further to this Article 70 creates legal mechanisms for the protection of the right to a clean and healthy environment. The Government has ratified an assortment of conventions and treaties that deal with among other issues labour, the environment, rights of women and children.
The second issue is on Social Investment or Corporate Social Responsibility plans of extractive companies. Back to Marikana.
The Mining Weekly reported that Lonmin had spent R163.8 million (Sh16.38 billion) on social investment projects between 2007 and 2010. Despite these efforts, the firm had not put in place an adequate socio-economic assessment system to determine the impact of the scheme on poverty reduction.
To avert such mistakes, companies must partner with relevant stakeholders to develop socio-economic impact assessment tools.
The tools will assist companies to identify, understand and manage social and economic issues. These tools help companies to improve their risk management. Reduced costs associated with disruption of production by disgruntled communities can be mitigated by putting in place socio-economic plans informed by the assessments.
The company gains from having a good reputation, it is able to retain its staff while the employees enjoy a higher quality of life. The company also benefits from having mutually and beneficial relationships with stakeholders and improves lives of vulnerable and disadvantaged people.
Companies which understand and act on their corporate responsibility to respect rights and develop comprehensive socio-economic impact assessments will enjoy benefits of having a social license to operate without worrying too much about their reputational risk, disruption and litigation costs.
Kabiru is senior human rights officer, Kenya National Commission on Human Rights. Lkabiru@knchr.org
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