FACULTY OF LAW

GPR 6110 CORPORATE GOVERNANCE & LAW

NAME: KARANJA KELVIN NDUNG’U

REG NO: GPR6/47033/2024

COURSE INSTRUCTOR: DR.KENNETH WYNE MUTUMA

TASK: INDIVIDUAL WORK

Corporations and Human Rights in Kenya: An Analysis of the Sufficiency of the Human
Rights System in Preventing Violations.

SUBMITTED ON:5TH MAY 2025

On first read the question constantly ringing on any of my readers mind is how can corporations be
responsible for human rights violation or rather can corporations be responsible for human rights
violations. According to the united nations All people, regardless of their color, sex, nationality,
ethnicity, language, religion, or any other status, are entitled to certain rights. Human rights
encompass a wide range of rights, such as the freedom from slavery and torture, the right to life and
liberty, the freedom of expression, the right to employment and education, and many more. Without
exception, everyone is entitled to these rights.

Governments are required by international human rights legislation to take specific actions or
refrain from taking specific actions in order to uphold and defend the fundamental freedoms and
human rights of individuals or groups. The development of a comprehensive body of human rights
law—a globally recognized and universal rule that all countries may abide by and to which all
people can aspire—is one of the United Nations' greatest accomplishments. A wide spectrum of
globally recognized rights, such as civil, cultural, economic, political, and social rights, have been
established by the UN. Additionally, it has put in place systems to uphold and defend these rights
and help nations fulfill their obligations.1 The United Nations Charter and the Universal Declaration
of Human Rights, which were ratified by the General Assembly in 1945 and 1948, respectively,
serve as the cornerstones of the united nations body of legislation. Since then, the UN has
progressively broadened the scope of human rights legislation to include particular requirements for
minorities, women, children, people with disabilities, and other vulnerable groups. As a result,
these groups now have rights that shield them from discrimination, which was once widespread in
many nations.2 1976 saw the implementation of the International Covenant on Economic, Social,
and Cultural Rights. Eighteen independent specialists make up the Committee on Economic, Social,
and Cultural Rights, which keeps an eye on how the Covenant is being applied by its signatories. In
2013, its Optional Protocol came into effect. The Covenant aims to uphold and advance the
following human rights: the right to work in fair and favorable conditions; the right to social
protection; the right to a sufficient standard of living and the best possible physical and mental
health; the right to education; and the right to benefit from cultural freedom and scientific
advancement.3

1
United Nations Guiding Principles on Business and Human Rights: Implementing theUnited Nations “Protect,
Respect and Remedy” Framework’ (2011) (‘Guiding Principles’), 1,endorsed by the Human Rights Council, Resolution
17/4 of 16 June 2011,
2
United Nations Guiding Principles on Business and Human Rights: Implementing theUnited Nations “Protect,
Respect and Remedy” Framework’ (2011) (‘Guiding Principles’), 1,endorsed by the Human Rights Council, Resolution
17/4 of 16 June 2011,
3
ibid
The First Optional Protocol to the International Covenant on Civil and Political Rights went into
effect in 1976, and the Second Optional Protocol followed suit in 1991. The Human Rights
Committee keeps an eye on how this international agreement and its optional protocols are being
implemented. Equality before the law, the right to a fair trial and the presumption of innocence,
freedom of movement, freedom of thought, conscience, and religion, freedom of opinion and
expression, peaceful assembly, freedom of association, participation in public affairs and elections,
and protection of minority rights are all covered by the Covenant. Slavery and forced labor, torture,
harsh or humiliating treatment or punishment, arbitrary deprivation of life, arbitrary arrest or
imprisonment, arbitrary interference with private, war propaganda, discrimination, and the
promotion of racial or religious hatred are all forbidden.4

According to the united nations guiding principles on the interplay between human rights and
businesses, the general principles are set out and grounded in recognition of: States’ existing
obligations to respect, protect and fulfil human rights and fundamental freedoms; The role of
business enterprises as specialized organs of society performing specialized functions, required to
comply with all applicable laws and to respect human rights; The need for rights and obligations to
be matched to appropriate and effective remedies when breached. 5 The un futher dictates that the
Guiding Principles on Business and Human Rights apply to all States and to all business
enterprises, both transnational and others, regardless of their size, sector, location, ownership and
structure. The principes offers as the first guding rule that “States must protect against human rights
abuse within their territory and/or jurisdiction by third parties, including business enterprises. This
requires taking appropriate steps to prevent, investigate, punish and redress such abuse through
effective policies, legislation, regulations and adjudication.”

The obligation of the state to protect is a said to be a standard code of conduct therefore, private
actors' violations of human rights are not necessarily the fault of states. States may, however,
violate their commitments under international human rights law if they are responsible for the abuse
or if they do not take the necessary actions to stop, look into, punish, and correct abuse by private
actors. States should take into account the entire spectrum of acceptable preventative and corrective
measures, including policies, legislation, regulations, and adjudication, even if they typically have
discretion in choosing these actions. States also have an obligation to uphold and advance the rule
of law, which includes implementing policies that guarantee equality before the law, equitable

4
ARNOLD, Denis G. “Corporations and Human Rights Obligations.” Business and Human Rights Journal 1, no. 2
(2016): 255–75. https://doi.org/10.1017/bhj.2016.19.
5
United Nations Guiding Principles on Business and Human Rights: Implementing theUnited Nations “Protect,
Respect and Remedy” Framework’ (2011) (‘Guiding Principles’), 1,endorsed by the Human Rights Council, Resolution
17/4 of 16 June 2011, available
application of the law, and sufficient accountability, legal certainty, and procedural and legal
transparency.6

States are also required as part of the obligations to set out clearly the expectation that all business
enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their
operations.7

The nature of corporations

The twin concepts of corporate veil and juristic personhood are known to be advantageous to
corporations. This architecture enables the separation of the natural individuals who invest in, run,
or work for the firm from the legal person on the one hand. The corporate veil shields the latter
from liability for legal infractions, while the former is the entity that is held accountable. 8 Limiting
the liability of a corporation's directors and investors for the debts incurred by the business is the
main goal of separate legal personality. It makes it possible to maximize profit as well as to produce
and consolidate capital. Profit maximization has been and continues to be the corporate entity's
main goal. It is also argued to have positive societal effects. This stance has generated a lot of
debate, with many contesting the notion that maximizing profit in conjunction with independent
legal persons is a source of societal benefit. 9 In the case of SERAC and CESR v Nigeria, the
African Human Rights Commission opined that, “internationally accepted ideas of the various
obligations engendered by human rights indicate that all rights – both civil and political rights and
social and economic – generate at least four levels of duties for a state that undertakes to adhere to a
rights regime, namely the duty to respect, protect, promote and fulfil these rights. These obligations
universally apply to all rights and entail a combination of negative and positive duties.” 10

The four pillars of international human rights law are protection, respect, promotion, and fulfilment
of human rights.11 The obligation to fulfill in each of the three cases involves the need to "do
something" or "achieve something" that would help the underprivileged or prevent deprivation.The
fact that some action is made to realize a right is the essential element of the obligation to fulfill.
Consequently, it is quite feasible that the obligation to fulfill could involve proactive measures to
6
ibid
7
ibid
8
Meyersfeld, B. ‘Corporations and positive duties to fulfil socio-economic rights: developing international human
rights law. The International Journal of Human Rights, 29(2), 240–281. (2024).
https://doi.org/10.1080/13642987.2024.2392169
9
Milton Friedman, Capitalism and Freedom (1962), 112; Douglas G. Baird and M. Todd Hen-derson, ‘Other People’s
Money’ (2008) 60: 1 Stanford Law Review 1309: 1323–4
10
United Nations Guiding Principles on Business and Human Rights: Implementing theUnited Nations “Protect,
Respect and Remedy” Framework’ (2011) (‘Guiding Principles’), 1,endorsed by the Human Rights Council, Resolution
17/4 of 16 June 2011, available
11
Ibid
prevent the reversal of rights. This also applies when a corporation is required to abstain from
exercising its rights in order to prevent a breach of rights. 12The Bill of Rights applies to and binds
all State organs and persons, according to Article 20 (1) of our Constitution. Article 260 further
defines "person" to include "a company, association, or other body of persons whether incorporated
or unincorporated." The foundation of our work on business and human rights is also provided by
Article 59(2)(c) of the Constitution, which mandates that the KNCHR encourage the protection and
observance of human rights in both public and private entities.13

The 1990s saw the dramatic global expansion of the private sector and a corresponding increase in
transnational economic activity, which raised social awareness of businesses' impact on human
rights and caught the attention of the United Nations. As a result, the issue of business and human
rights became permanently ingrained on the global policy agenda. 14 The preamble of the UDHR
asserts that “every organ of society shall secure the universal and effective recognition and
observance of human rights”. Also, articles 29 and 30 of the UDHR stipulate that “everyone” owes
human rights duties to the community to which they are a part. Likewise both the International
Covenant on Civil and Political Rights “ICCPR” and International Covenant on Economic, Social
and Cultural Rights “ICESCR” contemplate the existence of obligations for non-State entities by
asserting: “the individual, having duties to other individuals and to the community to which he
belongs, is under a responsibility to strive for the promotion and observance of the rights
15
recognized in the present covenant”. The UN Committee on Economic, Social, and Cultural
Rights the "ESCR Committee" stated in its General Comment 12 that "the realization of the right to
adequate food is a responsibility of all members of society, including the private business sector." 16

The idea of human dignity has strong roots in political, moral, and religious thought and is not just
found in contemporary legal debate. The philosophical underpinnings of the principle of human
dignity can be traced all the way back to classical Roman law, which used the concept to convey an
individual’s rank and status in society. Since the human rights framework serves as a means of
achieving the fundamental value of human dignity, the next question is how to use this value to lay
the groundwork for international corporate human rights accountability.17
12
ibid
13
“Business-and-Human-Rights”, https://www.knchr.org/Our-Work/Business-and-Human-Rights
14
Robert McCorquodale ‘Overlegalizing Silences: Human Rights and Nonstate Actors’ (2002) 96 American Society
International Law Proceedings 381, 384.
15
Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 (10 December 1948), preamble.
16
Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational
Corporations and Other Business Enterprises Protect, Respect and Remedy: A Framework for Business and Human
Rights UN Doc A/HRC/8/5 (7 April 2008).
17
Justice Ian Binnie ‘Confronting Corporate Complicity in International Human Rights Abuses’ (International
Commission of Jurists, Conference on Legal Remedies for Human Rights Abuse Involving Corporations, 2010).
Available at http://www.icj.org/dwn/img_prd/FINAL-BinnieJ-ICJSpeakingNotes_092310.pdf (Last visited on 11
The nature of the corporate duty to uphold human rights is somewhat distinct and has been covered
in great detail in numerous UNGPs commentaries. In any event, it is undeniable that the UNGPs do
not impose any explicit international legal obligations on businesses on human rights. In the past,
attempts to impose such human rights duties directly on commercial organizations have failed.
Such an endeavor presented significant practical, legal, and intellectual difficulties. The nature of
the corporate duty to uphold human rights is somewhat distinct and has been covered in great detail
in numerous UNGPs commentaries. In any event, it is undeniable that the UNGPs do not impose
any explicit international legal obligations on businesses on human rights. In the past, attempts to
impose such human rights duties directly on commercial organizations have failed. Such an
endeavor presented significant practical, legal, and intellectual difficulties. The states that created
international human rights legislation still have very little in common regarding what actions they
should take in relation to commercial companies. There are two types of state responsibilities
specified in the UNGPs:

1. a reminder of the international human rights commitments made by states under earlier
international and regional treaties and conventions;

2. a number of suggestions for specific actions such as the idea that states should take the
initiative to prevent companies operating in conflict-affected areas from engaging in human
rights violations; or the idea that states have the authority to control the extraterritorial
operations of companies based or listed within their borders.

The jurisprudence of the European Court of Human Rights provides the best example of the nature
and content of state obligations in the areas of business and human rights. States have a positive
duty to protect people from violations by businesses acting as third parties and a negative duty to
safeguard people's rights against violations by businesses acting as state agents, according to well-
established ECHR case law. In the former, the state is seen as directly interfering with the right or
rights at issue since the abusive actions of the private actor (commercial firms) are ascribed to the
state. In the latter case, the state's refusal to take appropriate action to shield citizens from corporate
abuse amounts to a human rights violation.18 As a result, the state's obligation to safeguard is made
up of a "smart mix" of legally-binding hard law commitments and soft law commitments that are
similar to corporate companies' non-binding obligations.

November 2013).
18
Augenstein, Daniel: State Responsibilities to regulate and Adjudicate Corporate Activities under the European
Convention on Human Rights, Submission to the Special Representative of the United Nations Secretary-General
(SRSG) on the issue of Human Rights and Transnational Corporations and Other Business Enterprises, April 2011
According to ECtHR case law, author Augenstein correctly distinguishes three types of
governmental obligations:

1. significant responsibilities to oversee and control company operations, including licensing,

2. Procedural tasks that provide an educated decision-making process and encourage public
engagement, such as research, investigations, and environmental impact assessments;

3. The duties of the judiciary and law enforcement, include the proper administration of
justice and the provision of effective remedies.

The Inter-American Court and Commission for Human Rights have developed jurisprudence that
directly relates to the area of human rights and commerce, much like the European human rights
system. According to the American Convention on Human Rights' articles 1.1 and 2, the state is
generally required to take reasonable steps to stop violations of human rights. This suggests that
non-state actors, especially commercial enterprises, must have their actions regulated and decided
by the state.19

In 2012, the Court ruled that indigenous communities throughout the Americas must be consulted
before their governments approve investment projects that affect their use and enjoyment of their
traditional lands.20 The UN human rights treaty institutions also help define countries' international
human rights commitments in the fields of business and human rights by publishing assessments,
non-binding research, and soft law norms.21

In its reports on each of the UN treaty bodies, the SRSG described the responsibilities of
governments to regulate and decide corporate activities in accordance with the UN core human
rights treaties. It is believed that this role of the state is part of its duty to prevent abuse by third
parties. The papers highlight "a trend towards increasing pressure on States to fulfil this duty in
relation to corporate activities" within their territorial authority, regardless of whether the
companies in question are privately or publicly owned or managed.22

19
ibid
20
inter-American Court of Human Rights, Sarayaku v. Ecuador, Judgement of 25 July 25 2012.
21
ibid
22
State responsibilities to regulate and adjudicate corporate activities under the United Nations’ core human rights
treaties: an overview of treaty body commentaries, Addendum 1 to the Report of the Special Representative of the
Secretary-General on the issue of human rights and transnational corporations and other business enterprises on
Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts,
13 February 2007.
What are the common human rights violations by corporates?

DISCRIMINATION:

Companies may treat current or prospective workers unfairly on the basis of their gender, race,
religion, disability, or other protected traits.

INFRINGEMENT ON THE RIGHTS OF WORKERS:

Common infractions include denying employees the ability to organize unions, participate in
collective bargaining, or have a safe and healthy workplace.

Unfair Wages and Working Hours:

Human rights breaches may occur when employees are paid less than a livable wage or are
compelled to put in excessive hours without enough breaks.

In kenya a key example of corporates that have been accused of human rights violations include
Kakuzi which saw a study done by Mariëtte van Huijstee, Lydia de Leeuw (SOMO), Mary Kambo
(KHRC) & Swaleh Githinji “Ndula Resource Center titled An Unrelenting Fight for Justice and
Remedy by Rural Kenyan Communities” their report highlighted several violation of human rights
which include but not limited to

1. Limited access to public facilities -the Kakuzi estate contains a number of public
institutions, including police stations, schools, health centers, and marketplaces. However,
these facilities can be challenging to reach because the roads and land inside the Kakuzi
farms' boundaries are not freely or conveniently accessible to the community members who
reside on and surrounding the company estate.

2. Violence and criminalization- many workers have been subjected to assault by company
security personnel cases which have escalated to include physical violence and assult
against women as well as sexual assault.

3. Workers' rights violations- Former Kakuzi employees allege that Kakuzi has violated their
labour rights in a number of ways, including intimidating them, terminating their
representatives for participating in lawful union operations, and unfairly dismissing them.
kakuzi has been involved in legal disputes with former employees and fired union officials
about allegations of wrongful termination.

Conclusion:
The idea that only State relations are governed by international human rights legislation is
obviously outdated and has to be changed. Corporations are now more than ever able to violate
basic human rights in the name of increased profits, investment, or economic growth due to the
enormous scope of contemporary commercial enterprises in today's globalized economy. This
essay has demonstrated that multinational corporations can fulfill their responsibilities under
international human rights law. However, the real existence of such norms has not yet been stated
by international jurisprudence or treaty law. 23 However, the establishment of such responsibilities is
unhindered by international law. As a result, it has been argued that the idea of human dignity gives
the international community a natural philosophical and legal basis for holding multinational
corporations responsible for their human rights abuses. According to my interpretation of the idea,
the fundamental minimum content that can be identified from international human rights
instruments is that every human being has inherent value that ought to be upheld and that certain
behaviors, including those of corporations, are incompatible with this value. Regardless of the
situation, I believe that corporate violations of human dignity are never acceptable and should never
be allowed. It is believed that the aforementioned analysis provides a foundation from which the
international community may start to develop a set of guidelines that will ensure that corporations
are held accountable for human rights abuses.

Bibliography

1. United Nations Guiding Principles on Business and Human Rights: Implementing theUnited
Nations “Protect, Respect and Remedy” Framework’ (2011) (‘Guiding Principles’),
1,endorsed by the Human Rights Council, Resolution 17/4 of 16 June 2011, available
athttps://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf.
2. The role of business entities in the violation of international human rights law has
beenaddressed by other UN and international entities:
3. UN Committee on Economic, Socialand Cultural Rights, General Comment No. 24: State
Obligations under the InternationalCovenant on Economic, Social and Cultural Rights in the
Context of Business Activities,10 August 2017, E/C.12/GC/24;

23
ibid
4. UN Committee on Economic, Social and CulturalRights, General Comment No. 12: The
Right to Adequate Food (Art. 11 of the Covenant),12 May 1999, E/C.12/1999/5, para 20
(General Comment 12); (iii) OECD (2011), OECDGuidelines for Multinational Enterprises,
OECD Publishing, https://www.oecd.org/daf/inv/mne/48004323.pdf.
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Inc v. Agencia Espanola de Proteccion de Datos 13 May 2014(balancing the rights of an
internet search engine operator (Google) against those of a‘data subject’ (an individual)).
6. The decisions and opinions of several treaty bodies are dis-cussed by Lottie Lane, ‘The
Horizontal Effect of International Human Rights Law in Prac-tice: A Comparative Analysis
of the General Comments and Jurisprudence of SelectedUnited Nations Human Rights
Treaty Monitoring Bodies’, European Journal of Compara-tive Law and Governance 5
(2018): 5–88.155.
7. Chiara Macchi, ‘The Normative Foundation of the Corporate Responsibility to Respect:
ACritical Analysis’, Business, Human Rights and the Environment: The Evolving Agenda
(TheHague, T.M.C. Asser Press, 2022).
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OF HUMAN RIGHTS.
9. ARNOLD, Denis G. “Corporations and Human Rights Obligations.” Business and Human
Rights Journal 1, no. 2 (2016): 255–75. https://doi.org/10.1017/bhj.2016.19.
10.