MOI UNIVERSITY

SCHOOL OF LAW

NAME : BETT RICKCARD KIPRUTO

REG. NO. : LLB / 06 / 18

COURSE TITLE : CLINICAL SEMINAR I

COURSE CODE : FLB 403

COURSE DIRECTOR : DR. NABIL M. ORINA

DATE OF SUBMISSION : SEPTEMBER 2021

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ASSESSING THE NATURE AND SCOPE OF THE LEGAL AND MORAL

RESPONSIBILITIES OF BLUE-CHIP CORPORATIONS IN THE PROTECTION OF
WORKER’S RIGHTS.

Introduction

Human rights law has developed gradually over the years. 1 It is has become a guiding principle
and also a sign of progress for states. It stands as a potent aspiration for every state to ensure the
maximum realization of the rights and freedoms of its citizens. 2 Effective protection of human
rights comes from within the state.3 As, such, the traditional perception of human obligations has
always been that bind only the state. The state should protect and promote human rights. 4 This is
achieved through the implementation of laws that seek to meet their positive and negative
obligations.

However, over the recent years, this view has shifted. Attention has been drawn to human rights
violations by business enterprises.5 There is a growing trend by national legislatures enacting
laws that obligate companies to protect and promote the rights of their workers. 6 This is evidence
of the shift to a more horizontal application and enforcement of rights. As such, human rights
obligations bind both the state and non-state actors. This is a positive move as it realizes the fact
that private companies are responsible for human rights violations.7

Whilst the need for horizontal realization of human rights is well documented, there is still little
being done in terms of implementation. Companies in Kenya have in many instances infringed

1
Steven Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 111 Yale Law Journal,
443,446.
2
Kathryn Sikkink, ‘Transnational politics, international relations theory, and human rights (1998) 31(3) PS: Political
Science & Politics. 517,520.
3
Philip Alston and Ryan Goodman, International Human Rights, (OUP, 2013),1047.
4
Gabriel Nyabola v Attorney General & 2 others Petition 72 of 2012 [2014] eKLR, PAO & 2 others v Attorney
General; Aids Law Project (Interested Party) Petition 409 of 2009 [2012] eKLR para. 20.
5
Lottie Lane ‘The Horizontal Effect of International Human Rights Law in Practice’ (2018) 5(1) European Journal
of Comparative Law and Governance.5,88
6
Brian Stauffer, ‘Holding Companies to Account: Momentum Builds for Corporate Human Rights Duties’ (Human
Rights Watch, January 2020) https://www.hrw.org/world-report/2020/country-chapters/global-2 Accessed on 27 July
2021.
7
Radmilla Suleymanova, ‘Corporate giants are falling on human rights, says study’ (Aljazeera 19 November 2020)
https://www.aljazeera.com/economy/2020/11/19/big-global-firms-falling-short-on-human-rights-despite-pressure
Accessed on 27 July 2021.

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the rights of their workers.8 The High Commissioner of United Nations Human Rights (OHCHR)
reports that Kenyan businesses have failed to protect and promote the human rights of their
workers. According to the report, workers in a variety of industries have poor working conditions
where underpaid employees work for long hours under deplorable conditions.9

Workers of big prestigious firms have to contend with a lack of employment benefits and other
employment rights.10 These facts indicate that most companies in Kenya lack a clear laid out
policy for promoting and enforcing the human rights of their employees. 11 Such companies also
lack the proper framework for reporting and reprimanding complaints. 12 There are also poor and
inadequate policies that cover occupational health and safety leading to violations of the right to
health.13

Based on this backdrop, there is a need for proper protection of worker's rights in company
policies. As such, the main objective of this research is to highlight the need, scope, nature, and
possible structure for such a policy for blue-chip companies in Kenya. This paper shall achieve
this in various parts. In the first part, this paper shall first establish the philosophical and
theoretical justifications for corporate human rights obligations. This section shall also highlight
opposing arguments and assess their weight. In its second part, the paper shall address the scope
and extent of the human rights obligation. This section shall highlight to what extent the blue-
chip companies are duty bearers and the extent of rights they are liable to promote. It shall also
highlight the standard of implementation required in the law. In its third part, this paper shall
outline the current legal framework in Kenya regulating business and human rights. This shall
also include approaches made both nationally and internationally to enforce human rights
obligations on companies. It shall also outline the role of the state in enforcement.

8
Victor Juma, ‘74pc of salaried Kenyans earn less than Sh50,000’ (Business Daily, 23 November 2018)
https://www.businessdailyafrica.com/bd/news/74pc-of-salaried-kenyans-earn-less-than-sh50-000-2228858 Accessed
27 July 2021.
9
Lewis Kinyua. "Evolution of Labour Law in Kenya: Historical and Emerging Issues." (2009) 4(1) International
Journal of Law and Policy, 1,6. See also, Maurice Alal, ‘Kibos Sugar to move out of Kenya over volatile working
conditions’ (The Star 21 December 2019) https://www.the-star.co.ke/counties/nyanza/2019-12-04-kibos-sugar-to-
move-out-of-kenya-over-volatile-working-conditions/ Accessed on 27 July 2021.
10
OHCHR, ‘Statement at the end of visit to Kenya by the United Nations Working Group on Business and Human
Rights’ (2018) available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?
NewsID=23356&LangID=E Accessed on 27 July 2021.
11
Ibid.
12
Ibid.
13
Ibid.

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In the fourth part, this paper shall assess the current policies in blue-chip companies. This section
shall investigate the current state of blue-chip companies in Kenya. This will be by assessing
whether these companies have their human rights obligations through internal policies and the
extent to these policies meet their obligation. In doing so, this section seeks to identify the
reasons for the failed compliance with human rights obligations. The fifth part of this paper shall
propose possible recommendations to improve the state of affairs. These recommendations aim
to guide possible policy frameworks for reform.

1. The Justifications for Corporate Human Rights Obligations

As earlier argued, human rights obligations have traditionally been vertical. 14 This means that in
most cases only the state is held liable for human rights violations. 15 Recent developments
however indicate that there is a shift to horizontal implementation of human rights. The broader
understanding is that private individuals and entities have a strong impact on the realization of
human rights.16 Horizontal application is justified based on a variety of philosophies. This part
seeks to assess the arguments for and arguments against corporate human rights obligations.

1.1. Arguments in support of Corporate Human Rights Obligations

1.1.1. Human rights are moral rights

From a moral perspective, corporations are responsible for the implementation of human rights. 17
The perception of human rights as moral rights was first alluded to by Immanuel Kant. 18 Kant
argued that human beings are in essence self-governing beings who possess unique dignity that
rights protect.19 According to him, rights confer upon the society a moral status and for this
reason, they should be protected. The violation of human rights thus becomes a moral wrong. 20

14
Danwood M. Chirwa, ‘The Horizontal Application of Constitutional Rights in a Comparative Perspective’ (2006)
10(2) Law, Democracy and Development 21,48.
15
Charles M. Kamau Principles of Constitutional Law (LawAfrica Publishers, 2014), 117.
16
Walter O. Khobe, ‘The Horizontal Application of the Bill of Rights and the Development of the Law to Give
Effect to Rights and Fundamental Freedoms’ (2014) 1 Journal of Law and Ethics pp.77,80. Jordan J Paust ‘Human
Rights Responsibilities of Private Corporations’ (2002) 35 Vanderbilt Journal of Transnational Law 801,802.
17
Stephen J Kobrin, 'Private Political Authority and Public Responsibility: Transnational Politics, Transnational
Firms and Human Rights' (2009) 19:3 Business Ethics Quarterly 351, 353.
18
Thomas Nagel, 'Personal Rights and Public Space' (1995) 24:2 Philosophy & Public Affairs 83,107.
19
Immanuel Kant, Foundations of the Metaphysics of Morals (New York: Macmillan, 1990 (1785)); Robert Nozick,
Anarchy, State, and Utopia (New York: Basic Books, 1974).
20
Ibid.

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Human rights should also be protected as they aid the individual to pursue long-term interests of
satisfaction, meaning, and happiness.21 Those who violate rights deter this essential goal and
violators should be held accountable.

Therefore, a corporation is a moral agent. 22 It interacts with its employees, customers, and
members of its surrounding society. In turn, it's the result of its dealings and decisions that will
have a direct impact on employees. Where such an impact is to the detriment of one’s rights, the
company should remedy such a violation as it is responsible for a moral wrong. A company is
thus responsible for the wrongs it commits and in turn, owes a duty to protect the human rights
of those likely to be affected. 23 There is thus a moral duty for the companies to carry out due
diligence on their actions. It is also important to note that, there are companies with annual
revenue that is far greater than the GDP of most countries. 24 These companies wield great power
and influence on individual citizens and can breach the rights and freedoms of these individual
freedoms. There is thus an implied moral duty to exercise such influence with precaution and due
diligence.25

Companies also play an important role in society as an avenue through which individuals can
gain income to improve their current situation. They are meant to enhance the betterment of
one’s welfare and lead to the ultimate goal of happiness, satisfaction, and meaning. The company
hence has a moral duty to ensure that its policies lead to this outcome. A company cannot be said
to have met the obligation to enhance its worker’s welfare where it blatantly infringes and
violates the rights of its workers.26

21
Alan Gewirth, Human Rights: Essays on Justification and Applications (Chicago: University of Chicago Press,
1982).
22
John Bishop, ‘The Limits of Corporate Human Rights Obligations and the Rights of For-Profit Corporations’
(2012) 22(1) Business Ethics Quarterly 119,123.
23
Louise J Obara, ‘'What Does This Mean?': How UK Companies Make Sense of Human Rights (2017) 2 Business
and Human Rights Journal, 249, 252.
24
James Manyika et.al, ‘A new look at how corporations impact the economy and households’ (McKinsey &
Company 31 May 2021) https://www.mckinsey.com/business-functions/strategy-and-corporate-finance/our-
insights/a-new-look-at-how-corporations-impact-the-economy-and-households Accessed 29 July 2021.
25
Ibid note 23 at 253.
26
Supra note 22 at 124. Philip Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A
Reply to Petersmann’ (2002) 13(4) European Journal of International Law, 815, 821.

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1.1.2. Human Rights are Derived from human dignity.

Human rights derive from the inherent dignity of a person. It is the basis and foundation of all
rights.27 Without human dignity, the value of human life is diminished. 28 This view of human
rights adopts the ‘perspective of recipience.’29 This means that the focus of rights is on those who
have entitlements rather than those with an obligation to provide for such entitlements. 30 Thus,
every individual by dint of being a human being, is equal and human rights are universal in
nature.31 A human being is a beneficiary of rights and freedoms emanating from dignity, such
rights are inalienable and cannot be renounced or lost. 32 Each possesses an intrinsic value that is
inherent and absolute. Therefore, all rights should seek to further human dignity and a violation
of one right is in essence a violation of one’s dignity. 33 Additionally, the duty to protect human
dignity binds both state and non-state actors.34 where the court held;

1.1.3. Protecting human rights is good for business

The workforce is the key driver of a successful business. Human resources are not only essential
but at times irreplaceable. The employees invest human capital in the corporation. 35As such
where a business wants to maximize its profits, the worker's interests must be catered for.
According to Emmanuel Ajala, people work better when their working conditions are favorable,

27
M W K v another v Attorney General & 3 others Constitutional Petition 347 of 2015 [2017] eKLR, Dawood vs
Minister of Home Affairs (2000) (3) SA 936(CC), Republic v Minister for Home Affairs and 2 Others Ex-parte
Leonard Sitanize Misc Civ App. 1652 of 2004 (2005) eKLR, Millicent Awuor Omiya alias Maimuna Awuor &
Another Versus The Attorney General & Another Petition No.562 of 2012,
28
State v Makwanyane 1995 (3) SA 391(CC) in para 328.
29
David Bilchitz, ‘A chasm between ‘is’ and ‘ought’? A critique of the normative foundations of the SRSG’s
Framework and the Guiding Principles in Surya Deva and David Bilchitz (ed.) Human Obligations of Business:
Beyond the Corporate Responsibility to Respect? (Cambridge University Press, 2013), 107, 126.
30
David Bilchitz, ‘Corporations and Fundamental Rights: What is the Nature of their Obligations, if Any?’ in
Christoph Lutge (ed.), Handbook on the Philosophical Foundations of Business Ethics (Dordrecht: Springer, 2012),
1053, at 1059.
31
Klaus Dicke, ‘The Founding Function of Human Dignity in the Universal Declaration of Human Rights’ in David
Kretzmer and Eckart Klein (eds.), The Concept of Human Dignity in Human Rights Discourse (The Hague: Kluwer
International, 2002), 118.
32
Maurice Cranston, What are Human Rights? (London: Bodley Head, 1973), 7.
33
John Wairimu Mathenge (Petitioning on Behalf of the Estate of Adam Mathenge Wangombe) v Attorney General
Constitutional Petition 147 of 2015 [2017] eKLR. Ahmed Issack Hassan vs. Auditor General Petition 356 of 2014
[2015] eKLR at para. 42. Also, Charles Murithii Muriga & 2 Others v Attorney General Petition 113 of 2009
Consolidated with Petition 44 of 2009 and Petition 48 of 2012 [2015] eKLR.
34
Satrose Ayuma & 11 others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3
others Petition 65 of 2010 [2010] eKLR.
35
Marleen A. O'Connor, ‘Human Capital ERA: Reconceptualizing Corporate Law to Facilitate Labor-Management
Cooperation’ (1993) 78 Cornell Law Review 899,922.

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this, in turn, leads to higher output and greater profits. 36 Workers tend to work better when the
environment is less stressful. It also includes areas where the workers feel, they are respected.
Where the worker's human dignity is respected and protected, they feel safe and protected.37

Moreover, corporations also need to protect human rights as a matter of reputation. 38 Customers
will abstain from buying products from companies that do not uphold human rights. the
willingness of consumers to use certain products is based on how best a corporation protects the
rights of its workers. States also abstain from entering bilateral investment treaties with
corporations that are complicit in human rights violations.39

For instance, in 2019, there was a boycott on Amazon services in the USA after Amazon was
found to have violated the rights of its employees. 40 There have also been boycotts against
SodaStream, which is a subsidiary of PepsiCo.41 The boycott led to a considerable loss as this
boycott led to a depreciation in sales. The fear of negative publicity makes such companies
promote human rights in fear of incurring huge losses occasioned by losses. 42 Michael Porter and
Mark Kramer argue that social responsibility should not be viewed as a constrain on a business,
instead it prevents an opportunity for innovation and possible competitive advantage.43

1.2. Arguments against Corporate Human Rights Obligations

1.2.1. Shareholder primacy

From an economic point of view, the corporation only owes a duty to its shareholders. Thus, the
only considerations the company should make in its actions should be the maximization of

36
Emmanuel Ajala, ‘The influence of workplace environment on workers’ welfare, performance and productivity’
(2012) 12(1) The African Symposium, 141,145.
37
Gary Burtless ‘Workers’ Labor Standards and Global Trade’ (2001) 19(4) The Brookings Review 10,11.
38
Peter Muchlinski ‘Human Rights and Multinationals: Is There a Problem?’ (2001) 77 International Affairs 31, 38.
39
Dana Zartner and Jennifer Ramos ‘Human rights as reputation builder: Compliance with the convention against
torture’ (2011) 12(1) Human Rights Review, 71, 82.
40
Ellen Dewitt ‘15 Corporate boycotts from 2019’ (Stacker, December 5, 2019) https://stacker.com/stories/3728/15-
corporate-boycotts-2019 Accessed 2 August 2021.
41
Ozlem Ulgen ‘Boycotts, funds, and class actions: Democratic imperative mechanisms against corporate
complicity in human rights violations (2020) 18 (1) The Palestine Yearbook of International Law 115,123.
42
Whizy Kim ‘Boycotts Are More Popular Than Ever -But Do They Work?’ (Refinery 29, August 4, 2020)
https://www.refinery29.com/en-us/2020/08/9935797/do-boycotts-really-work-cause-change Accessed 2 August
2021.
43
Michael E. Porter and Mark R. Kramer ‘Strategy & Society’ (2006) Harvard Business Review

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profits for its shareholders.44 Any decisions taken by the managers should be to the benefit of the
shareholders. This means that the need to make profits will essentially traverse all other needs
and duties. A company that expends resources on other activities such as the promotion of the
welfare of society will not be in line with the spirit of shareholder primacy.

Shareholder primacy is based on the arguments posited by Milton Friedman. Friedman argued
that the efficiency considerations for a corporation prohibit a corporation from spending the
company funds on general social functions. 45 Furthermore, the company needs only follow the
laws put in place and do only what is legal. 46 As Denis Arnold argues, the proponents of this
view argue that companies do not have a duty to protect human rights where it will lead to
losses.47 Thus, a company need only pay its taxes which is incidentally connected to efficiency in
wealth maximization.48

Shareholder primacy can be critiqued on several grounds. First, it leads to the realization of
short-term profits. To abandon all other obligations and focusing on profit maximization will
detract make the business from making long-term dividends. 49 This is because the shareholder
primacy theory assumes that the business operates in a vacuum. In truth, it operates in
communities and societies that form an invaluable resource for the business. 50 As argued earlier,
having a good reputation with the community will in the long run lead to an increase in profits.
Moreover, better working conditions will lead to a substantial and sustained increase in the

44
John F. Dodge and Horace E. Dodge v. Ford Motor Company et al 204 Mich. 459, 170 N.W. 668 (Mich. 1919).
Chris Sanchirico ‘Deconstructing the New Efficiency Rationale’ (2001) 86 Cornell Law Review 1003, 1005.
45
Milton Friedman, ‘A Friedman Doctrine: The Social Responsibility of Business’ The New York Times (New
York, 13, 1970): https://www.nytimes.com/1970/09/13/archives/a-friedman-doctrine-the-social-responsibility-of-
business-is-to Accessed 4 August 2021, 32. Santiago Mejia ‘Weeding Out Flawed Versions of Shareholder
Primacy: A Reflection on the Moral Obligations That Carry Over from Principals to Agents’ (2019) 29(4) Business
Ethics Quarterly 519,522.
46
Ibid, at 126.
47
Denis G Arnold ‘Corporations and Human Rights Obligations’ (2016) 1 Business and Human Rights Journal, 255,
262 also, Abagail McWilliams, Donald S Siegel, and Patrick M Wright, 'Corporate Social Responsibility: Strategic
Implications' (2006) 43(1) Journal of Management Studies 1,18.
48
Claire M. Dickerson ‘Human Rights: The Emerging Norm of Corporate Social Responsibility’ (2002) 76 Tulane
Law Review 1432,1434. David Milton, ‘New Game Plan or Business as Usual? A Critique of the Team Production
Model of Corporate Law’ (2000) 86 Vancouver Law Review 1001, 1003.
49
Faieza Chowdhury ‘Corporate Social Responsibility: To What Extent Businesses Should Contribute from
Theoretical Perspective?’ (2019) 11(12) European Journal of Business and Management 21,24.
50
Ibid at 23.

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business’ profits.51 This means that extending corporate obligations, in this case, will lead to
profit maximization.

Secondly, the shareholder primacy also implies that the business will treat different stakeholders
differently.52 As seen from the arguments of Milton Freidman, a corporation only should obey
the law.53 It can be inferred that based on this, the company will only obey the law and take little
steps to meet its obligations to uphold human rights. This creates a sort of inequality in terms of
its obligations to its stakeholders.

1.2.2. Destruction of Pluralism

Pluralism provides that power is and should be dispersed among a variety of social, economic,
and political groups. Proponents of the theory argue that decentralization of power allows for
various groups to enjoy autonomy.54 For instance, the economic sector and the state should be
separated with the state being an overseer. Corporations hence enjoy some level of freedom from
state control and can carry out their functions with limited state intervention. Their functions are
also limited to profit maximization.

Corporate human rights responsibilities are seen as a threat to pluralism as they will obligate the
business to take on functions reserved for the state. 55 In doing so, the business becomes fused
with the state. If this happens there are possible impacts to the social impacts. There will also be
limited freedom in terms of the decisions they make. As Levitt put it, the government's job is not
business, and the company's job is not carrying out government.56

2. The Typology of Corporate Human Rights Obligations

From the analysis above, it is clear that corporations should protect and promote human rights.
However, corporations are not accountable for all the world’s problems and they cannot have a
duty to everyone. As a result of this, the Government of Kenya came up with the National Action
51
Keith Davis, ‘The case for and against business assumption of social responsibilities (1973) 16(2) Academy of
Management Journal 312,322.
52
Ibid at 314.
53
Supra note 50.
54
Robert Dahl, ‘Pluralism Revisited’ (1978) 10(2) Comparative Politics 193, 201.
55
Sally Engle ‘Legal pluralism’ (1988) 22 Law & Soc'y Rev. 869, 873.
56
Theodore Levitt, ‘The Dangers of Social Responsibility’ (1958) 36 Harvard Business Review, 41,45. Bowen,
Howard R. Bowen, Social responsibilities of the businessman. (University of Iowa Press, 2013) 45.

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Plan on Business and Human Rights (NAP). 57 NAP lays out a guiding framework for the specific
duties regarding corporate responsibility which will lead to self-sustenance. 58 This section of the
paper shall outline the typology of obligations for corporations.

Traditionally, obligations of a duty bearer have always been conceived as dyadic, these are
positive and negative obligations. A positive obligation is a duty to do something. 59 Thus, the
duty-bearer had to take steps such as enacting policies or allocating resources to meet their
obligations.60 This also includes setting up a framework to implement the policies. A negative
obligation means that the duty bearer should refrain from taking an action that will infringe on
the right of others.61 This perspective of obligations was narrow and has been developed into a
tripartite classification of human rights obligations.

The tripartite approach is a broader view of the nature and concept of human rights. As Henry
Shue argues that there are no distinctions between rights but duties. 62 From this, Asbjorn Eide
lists out the three obligations based on Shue’s argument. 63 These obligations are the obligation to
protect, respect, and fulfill. The Constitution of Kenya 2010 has adopted this typology under
Article 21(1) and binds both the state organs and the private persons to varying extents. 64 This
part of the paper shall look at each obligation and highlight the obligations in the context of a
company.

57
Office of the Attorney General, National Action Plan on Business and Human Rights for the Implementation of
the United Nations Guiding Principles (NAP 2020-2025)
https://statelaw.go.ke/wp-content/uploads/2020/11/NATIONAL-ACTION-PLAN-ON-BUSINESS-AND-HUMAN-
RIGHTS-NOV-2020.pdf Accessed 5 August 2021.
58
Ibid pg.6-8.
on Business and Human Rights
59
The Belgian Linguistic case (No. 2) (1968) 1 EHRR 252
60
Jean-François Akandji-Kombe, ‘Positive obligations under the European Convention on Human Rights’ (2007) 7
Human rights handbooks 7. Dinah Shelton, and Ariel Gould ‘Positive and negative obligations’ In The Oxford
Handbook of International Human Rights Law. 2013.
61
Laurens Lavrysen, ‘Positive obligations in the jurisprudence of the Inter-American Court of Human Rights’
(2019) 7 Inter-American & European Human Rights Journal 94, 95. Also, X and Y v The Netherlands [1985] ECHR
4.
62
P. A. Woodward ‘Shue on Basic Rights’ (2002) 28 Social Theory and Practice 637, 642.
63
Henry Shue Basic Rights (2nd Ed Princeton University Press 1996) 52. Olivier De Schutter, et al. ‘Commentary to
the Maastricht Principles on extraterritorial obligations of states in the area of economic, social and cultural rights’
(2012) 34 Human Rights Quarterly 1084, 1090.
64
Mathew Okwanda v Minister of Health and Medical Services & 3 others Petition 94 of 2012 [2013] eKLR.

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2.1. The obligation to protect

This obligation requires the company to protect its workers from possible violation of their
rights. The company has both negative and positive aspects. The negative aspect provides that,
the company should ensure that its agents and other third parties do not infringe on the rights of
its employees.65 The businesses have a positive duty to develop a framework that prevents the
workers from the harmful impacts of other actors. 66 This includes a framework for investigating
and punishing a violation of their rights. Therefore, there is an obligation to take preventive steps
where the workers are at risk of injury or harm. Most of the cases arising out of the duty to
protect involve foreseeable risks.67

Admittedly, this obligation is more pronounced when the duty bearer is in the state. A
government cannot remain passive when non-state actors pose a threat to the rights of its
citizens. Where the duty bearer is a non-state actor, in our case a company, the duty to protect
will mean that the company should ensure that its workers, consumers, and other stakeholders
are not affected by the actions of its agents or organs. Also, there is a failure to meet this
obligation where the duty bearer, fails to act on the complaints of its staff. This is especially in
cases where customers abuse the rights of the workers. An example of this is the constant sexual
harassment, physical and verbal abuse in the hospitality industry.68

2.2. Obligation to respect

This duty implies that the company should refrain from interfering directly or indirectly with the
enjoyment of the right.69 Thus, a business should avoid causing adverse human rights impacts
and mitigate the harmful impacts it has caused. 70 The duty to protect highlights the duty bearer’s
obligation to prevent violations of third parties or its agents, while the duty to respect requires
65
Supra note 63 pg. 16.
66
Para. 40 UN Human Rights Council, Report of the Working Group on the issue of human rights and transnational
corporations and other business enterprises, 28 April 2015, A/HRC/29/28, available at:
https://www.refworld.org/docid/5583f3144.html Accessed 5 August 2021. Radhika Balakrishnan, Diane Elson, and
Raj Patel. "Rethinking macroeconomic strategies from a human rights perspective." (2010) 53(1) Development.
27,34.
67
B. (A.) v. D. (C.), [2011] BCSC 775.
68
Marek Korcyznski and Claire Evans ‘Customer abuse to service workers: an analysis of its social creation within
the service economy’ (2003) 27(5) Work, employment and society. 768,773.
69
W.J & another v Astarikoh Henry Amkoah & 9 others Petition 331 of 2011 [2015] eKLR.
70
Dylan Hays, ‘My Brother's Keeper: A Framework for a Legal Obligation to Respect Human Rights in Global
Supply Chains’ (2020) 88 Geo. Wash. L. Rev. 454, 462.

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the corporation to avoid violating the rights. Here the duty is on the direct actions of the duty
bearer and not those of a third party. This duty has both positive and negative aspects. The
positive aspect implies that the corporation implements policies while the negative aspect implies
that the company refrains from depriving the workers’ rights.71

According to Organization of Economic Cooperation and Development (OECD) principles, the

duty to respect also requires that there is effective implementation and enforcement policy. 72 This
policy should include remedies for the infringement of the worker's rights. 73 An example of such
a duty would be to provide favorable working conditions. 74 As argued earlier, good working
conditions are connected to the worker's mental and physical health. It also binds the employer to
act fairly in relating with their workers. 75 Also, the business should have a framework for acting
on allegations of human rights violations such as sexual harassment and discrimination.76

2.3. Obligation to fulfill

Here the duty bearer needs to adopt the appropriate legislative and administrative measures to
ensure the full realization of human rights. Thus, the corporation in this case must facilitate and
provide for the resources that guarantee the human rights protection of its workers. The
obligation to fulfill has two key features. First, it is dynamic as it involves the negative obligation
not to interfere and a positive duty to provide. Second, it requires a monitoring procedure to
ensure the duty bearer meets its obligation. 77 The duty bearer should then ensure that they are
accessible and efficient resources to fulfill their obligations.

71
Supra note 63 pg. 18.
72
Principle 11.
73
John Ruggie ‘Protect, respect, and remedy: A framework for business and human rights’ (2008) 3(2) Innovations:
Technology, Governance, Globalization. 189,198.
74
Section 5 Labour Relations Act, Article 23 ICESCR. Securex Agencies (K) Limited v Bernard Ochieng Olute Civil
Appeal 20 of 2004 [2009] eKLR. Kenya County Government Workers’ Union v County Government of Nyeri &
another Petition 10 of 2015 [2015] eKLR.
75
Seth Panyako v Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals, and Allied Workers Cause
1292 of 2011 [2013] eKLR.
76
Lucas v. Brown & Root, Inc., 736 F.2d 1202 (8th Cir. 1984).
77
John Bishop ‘A framework for discussing normative theories of business ethics’ (2000) 10(3) Business Ethics
Quarterly, 563, 580.

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3. Labour and employment rights of workers

Having assessed the typology of obligations, it is now important to look at the specific rights that
workers are entitled to workers. in the workplace. This part of the paper shall highlight the rights
of workers in light of the obligations listed above.

3.1. Employment Rights

These are the rights of individual employees. They arise out of the relationship between the
employer and an individual employee created under a contract of employment. 78 An employment
contract is an agreement entered between the worker and the employer to undertake the work in
return for payment.79 A great deal of human rights abuses arises from a violation of the worker's
fundamental rights under employment contracts. These rights include:

3.1.1. Freedom from non-discrimination

Discrimination is a distinction that is based on grounds relating to personal characteristics of the

individual or group and has an effect that imposes disadvantages not imposed upon others or
which withholds or limits access to advantages available to other members of the society. 80
Freedom from non-discrimination is a fundamental right protected under Article 27 of the
Constitution and lists out race, gender, sex, tribe, and other features as possible grounds for
discrimination. Additionally, Section 5 of the Employment Act obligates them to take positive
steps by promoting equal opportunity in the workplace. The act also obligates the employer to
refrain from direct and indirect discrimination based on personal characteristics.

A recurring issue has been the fact that women are paid less than men for doing the same job. 81
Another complaint has been that there is considerable nepotism and tribalism in the appointment
and promotion process in some companies. Additionally, there are cases of discrimination based

78
Bob Hepple ‘Restructuring Employment Rights’ (1986) 15(1) Industrial Law Journal 69,72.
79
Ready Mix Concrete Ltd v Minister of Pensions [1968] 2 Q.B. 497.
80
Article 1 ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111). Andrews v Law Society
of British Columbia [1989] 1 SCR 143.
81
Raphael Obonyo 'Why Kenya's recovery plans need to be gender-friendly(Business Daily March 21, 2021)
https://www.businessdailyafrica.com/bd/lifestyle/society/why-kenya-recovery-plans-need-to-be-gender-friendly-
3313138 Accessed on 6 August 2021. Dominic Kirui ‘In Kenya, women bear the brunt as mechanisation wipes out
tea sector jobs’ (Equal Times, February 21mechanization://www.equaltimes.org/in-kenya-women-bear-the-brunt-as?
lang=en Accessed on 6 August 2021.

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on physical disability82 and religious belief. Recently, there are cases of discrimination based on
gender identity and sexual orientation. With the rise in advocacy for LGBT+ rights, it is evident
that those who identify as either gay, lesbian or transexual find it hard to get work.83

In Polycarp Miyogo Nyakora,84 the court held freedom from non-discrimination means the
employer must accommodate the religious needs of its employees and adjust the requirements
for a job so that employees can work without giving up their religious beliefs. Moreover,
discriminatory treatment violates human dignity85 as human beings are treated unequally. For
instance, in the case of KELIN86 the court noted that discrimination against employees who are
HIV positive dehumanizes the workers. Discrimination will have to be established based on the
circumstances of the case.87 Based on this, there could be positive forms of discrimination that do
not violate the workers' employment rights. For instance, Section 5(4) of the Employment Act
allows the employer to tale affirmative action measures to promote equality, make decisions
based on the requirements of a job or restrict access to limited categories of employment.

The action must be based on legitimate grounds. The end goal should be to promote equality and
achieve fairness. The unjustified ground will be those only based on treating two similarly
qualified workers differential treatment based on the fact that one's characteristic. There should
be policies in place to ensure that promotions, appointments, and all employment-related
decisions are based on their qualifications.88

3.1.2. Right to health

Every person has the right to the highest attainable standard of health. 89 The right to health has
many obligations and duties. It includes the duty to provide a safe and hygienic working
82
Sam Kiplagat ‘Safaricom fined for declining to hire blind man’ (Business Daily 13 July 2021)
https://www.businessdailyafrica.com/bd/economy/safaricom-fined-declining-to-hire-blind-man-3470902 Accessed 6
August 2021.
83
Jason Burke ‘Kenya to rule on gay rights as African neighbours look on’ (The Guardian 21 February 2019)
https://www.theguardian.com/global-development/2019/feb/21/kenyan-court-set-to-rule-on-decriminalising-
homosexuality Accessed on 7 August 2021
84
Polycarp Miyogo Nyakora v Attorney General & 2 others Petition 32 of 2013 [2017] eKLR.
85
State of Bombay v F. N. Balsara AIR 1951 SC 318 at p. 326 Samson Gwer & 5 others v Kenya Medical Research
Institute & 3 others Petition 12 of 2019 [2020] eKLR.
86
Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health &
4 others Petition 250 of 2015 [2016] eKLR.
87
Supra note 63 pg. 14. Harksen v Lane and Other (1998) 1 SA 300 (CC) para 54.
88
Supra note 82.
89
Article 43(1)(a) COK.

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environment. This means that the employer has a positive duty to ensure that the work systems
do not pose a risk to the worker’s health. A plethora of things can pose a threat to the workers’
health. For instance, exposure to pollution 90 or radioactive materials. Consequently, in Cyrus
Ombuna Machini v Safaricom Limited,91 the court held that ng long working hours.92 This also
includes the duty to provide for protective clothing and equipment that protects the employees
from occupational hazards and work-related injuries. 93 As such, the employee is entitled to sick
leave, annual leave, maternity leave, and medical attention.94

3.1.3. Freedom and Security of a person

Every person has the right to freedom and security of the person includes the right not to be
subjected to any form of violence, torture, or be treated in an inhuman and degrading manner. 95
Complaints of sexual harassment are common. Sexual harassment constitutes an unwelcome and
violation of the victims’ rights to the security of a person. It can either be physical (involving
touching and unnecessary proximity)96 or verbal (involving comments about appearance or
sexual orientation). The company should enact internal policies that combat sexual harassment.
This includes effective implementation of the internal policies.97

3.1.4. Protection of Wages

A wage is remuneration or earning calculated in terms of money by an employment contract for

work done or to be done.98 Every worker has a right to fair remuneration. 99 This means that the
employer must pay the entire amount of wage for the work done when the wage is due. 100 The
issue comes in where workers are paid less for long hours of work, pay that does not meet the
reasonable remuneration for the amount of work done, or pay that is below the minimum wage.

90
Faith Mutindi Kasyoka v Safepark Limited Civil Appeal 551 of 2014 [2019] eKLR
91
Civil Suit 145 of 2016 [2017] eKLR
92
See also, Ruth Nthenya Kilonzo v Standard Chartered Bank Kenya Ltd Civil Suit 517 of 1997 [2007] eKLR
93
Supra note 92.
94
Part V Employment Act Cap 226.
95
Article 29 COK.
96
Jane Aeberhard-Hodges ‘Sexual harassment in employment: Recent judicial and arbitral trends’ (1996)
135 International Labour Review. 499,507
97
Anne O'Leary-Kelly, et al. ‘Sexual harassment at work: A decade (plus) of progress’ (2009) 35(3) Journal of
Management. 503,506.
98
Article 1 ILO Convention no.95 on Protection of Wages.
99
Article 41(2)(a) COK.
100
Sections 17 and 18 Employment Act.

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Workers are also entitled to benefits and allowances connected to their work. Where available,
allowances must be paid in an equal and fair manner. Consequently, issues of unfair
discrimination in terms of wages are common. This is evident especially in terms of gender
discrimination as women get paid less for doing the same job in some cases.101

3.1.5. Fair Administrative Action

Every person has a right to fair administrative justice. 102 An administrative action is one taken by
any person exercising administrative authority or whose decision affects the rights affecting the
legal rights of the person to whom the action relates. To amount to fair, administrative action, the
company’s decision or action should be expeditious, efficient, lawful reasonable, and
procedurally fair.103

This right obligates the company to make positive steps to ensure that their decisions are
implemented expeditiously, fairly, and free from bias. The company also has to ensure that the
procedures are followed and the decision is legal. 104 Therefore, the duty to respect fair
administrative action is far-reaching and broad. For instance, fair administrative action may be
the basis for reviewing an unjustified dismissal or demotions. 105 In most cases, these decisions
affect the employee if the reasons behind the decisions are unjustified and illegitimate.
Moreover, a disgruntled employee may feel that fair administrative action was protected if a
disciplinary tribunal acts unreasonably.106

3.2. Labour Rights

These are rights that protect the employees in a more general sense. It is not limited to individual
rights but employees as a group. They are hence narrow in scope limited to the rights of
employees as a whole and not the various individual rights. The duties of the employer here are

101
Supra note 89.
102
Article 47 COK.
103
President of the Republic of South Africa and Others vs South Africa Rugby Football Union and Others (CCT
16/98) 2000 (1) SA 1, Garissa County Government v National Land Commission & 3 Others, Petition No. 401 of
2014 [2016] eKLR
104
Republic v National Hospital Insurance Fund Board of Management & another Ex parte Law Society of Kenya
Miscellaneous Civil Application 159"B" of 2018 [2019] eKLR
105
Judicial Service Commission of Kenya v. Mbalu Mutava & Another Petition Number 337 of 2013 [2015] eKLR.
106
Mohammed Sheria & 2 others v Simon Kipkorir Sang & 5 others Constitutional Petition 11 of 2017 [2018]
eKLR.

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limited to those duties that have an impact on the labor rights of employees. Some of the more
controversial rights include:

3.2.1. Right to Freedom of Association

The right to freedom of association entitles workers to form and join worker’s organizations 107
such as trade unions, worker councils, or worker committees. Such organizations are based on
the need to promote and defend their interests. Trade unions are essential in the negotiation of
collective bargain agreements. Collective bargaining agreement negotiation (CBA) is a key
means through which employers and their organizations and trade unions can establish fair
wages and working conditions.108 A CBA is defined as a written contract concerning any term
and condition of employment made between a trade union and an employer or an organization of
employers.109 The definition of a CBA is perhaps the contentious issue here. It stipulates the
parties to a CBA are the trade union (representing the employee) and the employer or a group or
organization of the employers. The ILO also regards the CBA as a bipartite negotiation
process.110

The employer must allow the employees to join and form trade unions and to incorporate the
trade unions in the labor relations of its workers. Additionally, the right to unionize obligates the
employer to allow employees to freely unionize to advocate for their interests. It also prohibits
the employer from coming up with policies that restrict its employees from participating in
workers' organizations.111 The court elaborated this position in Transport Workers Union v Saudi
Arabia Airlines112 where Mbaru J stated,

“An individual employee claiming the right to unionize must mobilize like-minded employees as
alone, the right is just a mirage. Equally, an employer is bound to ensure, protect and promote the

107
Article 41(2) COK. Section 4 Labour Relations Act 2007. Article 1 Freedom of Association and Protection of the
Right to Organise Convention, (No. 87).
108
Amalgamated Union of Kenya Metal Workers v Dathley Industries Ltd, Cause no.2098 of 2011. Susan Hayter,
Tayo Fashoyin, and Thomas A. Kochan. ‘Review essay: Collective bargaining for the 21st century (2011) 53(2)
Journal of Industrial Relations 225,237.
109
Section 2 Labour Relations Act 14 of 2007 (LRA) Also, Article 2 of the Collective Bargaining Convention, 1981
(No. 154)
110
Bernard Gernigon et al. ‘ILO Principles Concerning Collective Bargaining’ (2000) 139 International Labour
Review 33, 34.
111
Pedro Mendonça, ‘Trade union responses to precarious employment: The role of power resources in defending
precarious flight attendants at Ryanair’ (2020) 26(4) Transfer: European Review of Labour and Research 431,434.
112
Cause 389 of 2016 [2016] eKLR.

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right to unionize as, with it, the employer deals with the collective unlike the case of negotiating
terms and conditions of employment with each employee. The positive right in unionization is for
the employer to ensure that the employee under them is aware of their right to unionize and are
given the freedom to do so. The negative right is also that the employer should not punish,
intimidate, threaten, or in any manner separate an employee seeking to enjoy their right to
unionize and pitch them for victimization. Such would be to derogate from the Bill of Rights”. 113

Trade unions give the workers a sense of identity. 114 It allows workers the ability to express their
views and achieve self-realization towards personal fulfilment. To ensure this, workers should be
allowed to join and participate in worker organizations without unjustified limitations. 115

3.2.2. Right to go on strike

Budeli states that the right to go on strike is a keystone of modern industrial society. 116 Under
Article 41(2)(d) of the Constitution, every employee has the right to go on strike.
Gajendragadkar J argues that it is the worker’s weapon in the struggle between capital and
labor.117 The right to go on strike is the primary means employees act on their behalf to assert
their autonomy and maintain the worth of their labor in the face of this power imbalance. 118 The
right to withdraw labor maintains an effective voice concerning work decisions vital to the value
and meaning of this labor.

The company has a positive duty to ensure that he right is practicably realizable and enforceable.
There is also a negative duty not to make decisions that are to the detriment of the employee
when they decide to go on strike. Thus, as was held in Mohamed Yakub Athman & 29 others v
Kenya Ports Authority119 the employer cannot dismiss the employees who take part in a
legitimate strike.

113
Ibid.
114
Dunmore v Ontario (Attorney General), [2001] 3 SCR 1016 at para 118.
115
James Gross, A Shameful Business: The Case of Human Rights in the American Workplace (Cornell University
Press, 2010), p. 14.
116
Mpfari Budeli 'Understanding the right to freedom of association at the workplace: components and scope' (2010)
vol 31/1 Obiter at Pg 27.
117
Kairbitta Estate v. Rajmanickam1960 AIR (3) 371. The same view was adopted in the South African case of
EPPWAWU v. Metrofile [pty] Ltd [2002] ZACC 30.
118
Paul Weiler, Reconcilable differences: New directions in Canadian labor law (Carswell, Toronto, 1980) p. 66.
119
Cause 448 of 2015 [2016] eKLR

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4. An Overview in Human Rights Obligations in Select Blue Chip Companies in Kenya

Having assessed the scope and extent of human rights oblations, it is now relevant to evaluate the
extent to which blue-chip companies in Kenya meet these duties. A blue-chip company is a
nationally recognized, well-capitalized120 and financially stable company that generates high
quality.121 These companies are unique in that their quality has withstood the test of time. It’s a
multinational company that has been in operation for years and its stocks maintain high quality
as a result of this.

Therefore, this section of the paper shall appraise the situation on the ground. This study shall be
limited to the policies in EABL and Safaricom which are some of the companies considered as
blue-chip companies in Kenya.122 These companies are among the top companies in the country
based on market capitalization but how well do they meet their human rights obligations?

4.1. Safaricom

Safaricom is the leading telecommunications company in East and Central Africa. Concerning its
policies, Safaricom has a wide range of internal regulations that cover the health and safety of its
employees, the right to privacy, conflict resolution, a conducive working environment, and a
whistle-blowing policy.123 From this, it is clear that Safaricom meets the positive obligation to
provide and promote. The issue comes in regarding the negative duty to respect. It is ranked 3 rd
in terms of best workplace policies. Its policies provide a living wage, offers flexible work
arrangements and gender equality.124

120
Steven Nickolas ‘What Qualifies a Company as Blue-Chip?’ (Investopedia 28 July 2021)
https://www.investopedia.com/ask/answers/031915/what-qualifies-company-blue-chip.asp Accessed 12 August
2021.
121
James Chen ‘Blue Chip’ (Investopedia 27 December 2020) https://www.investopedia.com/terms/b/bluechip.asp
Accessed 12 August 2021.
122
James Anyanzwa ‘Blue chip firms' dominance could destabilize bourse - Central Bank’ (The East African 22
December 2019) https://www.theeastafrican.co.ke/tea/business/blue-chip-firms-dominance-could-destabilise-
bourse-central-bank-1433424 Accessed 12 August 2021.
123
Safaricom ‘Safaricom Policies and Procedures – Safaricom’ (Safaricom.co.ke2021)
https://www.safaricom.co.ke/about/about-safaricom/suppliers/safaricom-policies-procedures Accessed August 20,
2021
124
Equileap Gender Equality in Kenya: Assessing 60 leading companies on workplace equality (Equileap Special
Report 2019) p18. https://equileap.com/wp-content/uploads/2019/11/Gender-equality-in-Kenya_Special-report-by-
Equileap.pdf Accessed 21 August 2020.

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The negative issue is to refrain from violating human rights. The company has come under fire
for having long working hours and an unconducive working environment. The company also
came under fire for discrimination against its workers with disabilities. 125 Whereas these are
isolated cases, these facts translate to a lack of adequate enforcement and implementation. To
this extent, the steps made by Safaricom are considerable but sufficient.

4.2. East African Breweries Ltd (EABL)

EABL has been a leading producer of alcoholic beverages since 1922. Over the years, the multi-
national corporation has achieved sustained growth in the quality of its stock. Also, the company
has policies that promote labor and employment rights. 126 These include family leave policies
aimed at providing maternity and compassionate leave,127 an employee medical scheme, a
mortgage benefit scheme, CBAs among others. The company also boasts of promoting gender
equality as 50% of its hires are women across Kenya, Uganda, and Tanzania. 128 EABL has also
seen little to claims of unlawful dismissal, discrimination, and unfair labor relations.

However, a key issue is the implementation and enforcement of policies. A study by the UN
Global Compact stated that EABL had policies on flexible work options, access to child care,
gender-specific health policies but little to no record of actual practice. 129 Whereas it scores well
on paper the key issue is that actual reports of these steps in action are put in place. The company
also came under fire in 2015 over racial discrimination by one of its directors. A key issue that
emerged from this case was the reluctance on the part of the employees in speaking out. This can
be a sign of poor whistle-blower policies.130

125
Wilson Macharia v Safaricom Plc Petition 434 of 2019 [2021] eKLR.
126
EABL ‘2020 Integrated Report and Financial Statements’ (EABL 2020)
https://www.eabl.com/sites/default/files/eabl-2020-annual-report-abridged.pdf pg. 59, 65. Accessed 25 August 2021.
127
Patrick Alushula ‘EABL new mums to get 6-month maternity leave’ (Business Daily 28 May 2019)
https://www.businessdailyafrica.com/corporate/companies/EABL-new-mums-to-get-6month-maternity/4003102-
5134670-wotrdn/index.html Accessed 25 August 2021.
128
Winnie Atieno ‘EABL plans for 50:50 gender balance by 2025’ (The Nation 23 November 2020)
https://nation.africa/kenya/gender/eabl-plans-for-50-50-gender-balance-by-2025-3207010?view=htmlamp Accessed
25 August 2021.
129
UN Global Compact ‘EABL in 2019’ (UN Global Compact 19 September 2019)
https://www.unglobalcompact.org/participation/report/cop/create-and-submit/active/432691 Accessed 25 August
2021.
130
Charles Mokabi ‘East African Breweries Director quizzed over racial bias claims’ (Daily Nation 18 March 2015)
https://nation.africa/kenya/business/East-African-Breweries-director-quizzed-over-racial-bias-claims/996-2658162-
t74i1e/index.html Accessed 25 August 2021.

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5. Recommendations

The situation in EABL and Safaricom is common in companies and businesses in Kenya. This
section seeks to propose the approaches to resolving the various challenges to business
obligations for blue-chip companies. The following are possible recommendations for reform:

 The lack of enforcement creates a considerable issue. Effective implementation is an

essential step in meeting the objectives of the NAP. Without proper implementation, the
policies of the companies are meaningless words on paper. Moreover, the lack of
implementation is a failure of the obligation to respect. 131 Possible solutions to this issue
can be approached in two ways. First, the company has to ensure that there is
implementation and enforcement. To check on this, companies could adopt the practice
by UN Global Compact which requires the filing of reports on progress made in terms of
their obligations. An audit of sorts into the extent of implementation of the human rights
obligations. Second, the government could come to enforce the reporting of these audits.
This could be through investigation and reporting could help keep tabs on the companies
and meet the state’s obligation to protect.
 There is also a lack of a clear framework for CSR obligations for companies. There is a
wide range of laws providing for labor rights and employment in the country. However,
most of the laws only provide for the duty but not a framework. For instance, the NAP
obligates companies to ensure fair administrative action but does not give a basis for
meeting this obligation. A possible solution to this could be enacting a guiding
framework with proposals on the specific duties, the scope of policies, and the manner of
enforcement. This could aid in charting a sort of standard for what policies should
embody. A uniform guideline could ensure uniformity. An example of such a practice
can be seen from the use of the MacBride Principles in New York and Massachusetts.132

Conclusion

It is well settled that non-state actors are bound to respect, fulfill and protect human rights. Blue-
chip companies are heavily dependent on their workforce to ensure they conduct business and
131
Supra note 72.
132
Barbara Frey ‘The Legal and Ethical Responsibilities of Transnational Corporations in the Protection of
International Human Rights’ (1997) 6 Minnesota Journal of International Law 153, 174.

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make profits. On the other hand, workers are dependent on the companies for their daily bread.
This symbiotic relationship works well where the company protects and promotes workers’
welfare. This paper concludes that blue-chip companies have not done enough to enforce their
internal policies. Thus, they fail to fully protect the rights of workers. Moreover, there is a
greater need to hold such companies accountable for their obligation to respect and promote
worker’s rights.

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BIBLIOGRAPHY

1. List of cases

1.1. Kenya

 Faith Mutindi Kasyoka v Safepark Limited Civil Appeal 551 of 2014 [2019] eKLR

 Gabriel Nyabola v Attorney General & 2 others Petition 72 of 2012 [2014] eKLR

 Garissa County Government v National Land Commission & 3 others, Petition No. 401
of 2014 [2016] eKLR.

 Judicial Service Commission of Kenya v. Mbalu Mutava & Another Petition Number 337
of 2013 [2015] eKLR.

 Kenya County Government Workers’ Union v County Government of Nyeri & another
Petition 10 of 2015 [2015] eKLR.

 Transport Workers Union v Saudi Arabia Airlines Cause 389 of 2016 [2016] eKLR.

 Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet
Secretary Ministry of Health & 4 others Petition 250 of 2015 [2016] eKLR.

 Mathew Okwanda v Minister of Health and Medical Services & 3 others Petition 94 of
2012 [2013] eKLR.

 Mohammed Sheria & 2 others v Simon Kipkorir Sang & 5 others Constitutional Petition
11 of 2017 [2018] eKLR.

 Republic v National Hospital Insurance Fund Board of Management & another Ex parte
Law Society of Kenya Miscellaneous Civil Application 159"B" of 2018 [2019] eKLR

 Ruth Nthenya Kilonzo v Standard Chartered Bank Kenya Ltd Civil Suit 517 of 1997
[2007] eKLR

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 Securex Agencies (K) Limited v Bernard Ochieng Olute Civil Appeal 20 of 2004 [2009]
eKLR.

 Seth Panyako v Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals

and Allied Workers Cause 1292 of 2011 [2013] eKLR.

 Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others Petition 12 of
2019 [2020] eKLR.

 W.J & another v Astarikoh Henry Amkoah & 9 others Petition 331 of 2011 [2015] eKLR.

 PAO & 2 others v Attorney General; Aids Law Project (Interested Party) Petition 409 of
2009 [2012] eKLR

 Polycarp Miyogo Nyakora v Attorney General & 2 others Petition 32 of 2013 [2017]
eKLR.

1.2. United States of America

 Lucas v. Brown & Root, Inc., 736 F.2d 1202 (8th Cir. 1984).

1.3. South Africa

 Harksen v Lane and Other (1998) 1 SA 300 (CC).

 President of the Republic of South Africa and Others vs South Africa Rugby Football
Union and Others (CCT 16/98) 2000 (1) SA 1.

1.4. India

 State of Bombay v F. N. Balsara AIR 1951 SC 318

1.5. Canada

 B. (A.) v. D. (C.), [2011] BCSC 775.

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1.6. European Court of Human Rights

 The Belgian Linguistic case (No. 2) (1968) 1 EHRR 252.

 X and Y v The Netherlands [1985] ECHR 4.

2. Books

 Henry Shue Basic Rights (2nd Ed Princeton University Press 1996)

 Immanuel Kant, Foundations of the Metaphysics of Morals (New York: Macmillan, 1990
(1785)).

 Maurice Cranston, What are Human Rights? (London: Bodley Head, 1973).

 Michael J. Perry ‘Toward a theory of human rights: religion law and courts’ (Cambridge
University Press,2006).

 Philip Alston and Ryan Goodman, International Human Rights, (OUP, 2013).

3. Book Chapter

 David Bilchitz, ‘A chasm between ‘is’ and ‘ought’? A critique of the normative
foundations of the SRSG’s Framework and the Guiding Principles in Surya Deva and
David Bilchitz (ed.) Human Obligations of Business: Beyond the Corporate
Responsibility to Respect? (Cambridge University Press, 2013), 107.

 David Bilchitz, ‘Corporations and Fundamental Rights: What is the Nature of their
Obligations, if Any?’ in Christoph Lutge (ed.), Handbook on the Philosophical
Foundations of Business Ethics (Dordrecht: Springer, 2012), 1053.

 Dinah Shelton, and Ariel Gould ‘Positive and negative obligations’ In Dinah Shelton
(ed.), The Oxford Handbook of International Human Rights Law, (Oxford University
Press 2013), 19.

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 Klaus Dicke, ‘The Founding Function of Human Dignity in the Universal Declaration of
Human Rights’ in David Kretzmer and Eckart Klein (eds.), The Concept of Human
Dignity in Human Rights Discourse (The Hague: Kluwer International, 2002), 118.

4. Journal Articles

 Abagail McWilliams, Donald S Siegel and Patrick M Wright, 'Corporate Social

Responsibility: Strategic Implications' (2006) 43(1) Journal of Management Studies 1.

 Barbara Frey ‘The Legal and Ethical Responsibilities of Transnational Corporations in

the Protection of International Human Rights’ (1997) 6 Minnesota Journal of
International Law 153.

 Bernard Gernigon et al. ‘ILO Principles Concerning Collective Bargaining’ (2000) 139
International Labour Review 33.

 Bob Hepple ‘Restructuring Employment Rights’ (1986) 15(1) Industrial Law Journal 69.

 Chris Sanchirico ‘Deconstructing the New Efficiency Rationale’ (2001) 86 Cornell Law
Review 1003.

 Claire M. Dickerson ‘Human Rights: The Emerging Norm of Corporate Social

Responsibility’ (2002) 76 Tulane Law Review 1432.

 Dana Zartner and Jennifer Ramos ‘Human rights as reputation builder: Compliance with
the convention against torture’ (2011) 12(1) Human Rights Review, 71.

 Danwood M. Chirwa, ‘The Horizontal Application of Constitutional Rights in a

Comparative Perspective’ (2006) 10(2) Law, Democracy and Development 21.

 David Milton, ‘New Game Plan or Business as Usual? A Critique of the Team
Production Model of Corporate Law’ (2000) 86 Vancouver Law Review 1001.

 Denis G Arnold ‘Corporations and Human Rights Obligations’ (2016) 1 Business and
Human Rights Journal, 255.

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 Dylan Hays, ‘My Brother's Keeper: A Framework for a Legal Obligation to Respect
Human Rights in Global Supply Chains’ (2020) 88 Geo. Wash. L. Rev. 454.

 Faieza Chowdhury ‘Corporate Social Responsibility: To What Extent Businesses Should

Contribute from Theoretical Perspective?’ (2019) 11(12) European Journal of Business
and Management 21.

 Gary Burtless ‘Workers’ Labor Standards and Global Trade’ (2001) 19(4) The Brookings
Review 10.

 Jane Aeberhard-Hodges ‘Sexual harassment in employment: Recent judicial and arbitral

trends’ (1996) 135 International Labour Review. 499.

 Jean-François Akandji-Kombe, ‘Positive obligations under the European Convention on

Human Rights’ (2007) 7 Human rights handbooks 7.

 John Bishop ‘A framework for discussing normative theories of business ethics’ (2000)
10(3) Business Ethics Quarterly, 563.

 John Bishop, ‘The Limits of Corporate Human Rights Obligations and the Rights of For-
Profit Corporations’ (2012) 22(1) Business Ethics Quarterly 119.

 John Ruggie ‘Protect, respect and remedy: A framework for business and human rights’
(2008) 3(2) Innovations: Technology, Governance, Globalization. 189.

 Jordan J Paust ‘Human Rights Responsibilities of Private Corporations’ (2002) 35

Vanderbilt Journal of Transnational Law 801.

 Kathryn Sikkink, ‘Transnational politics, international relations theory, and human

rights’ (1998) 31(3) PS: Political Science & Politics. 517.

 Keith Davis, ‘The case for and against business assumption of social responsibilities’
(1973) 16(2) Academy of Management Journal 312.

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 Laurens Lavrysen, ‘Positive obligations in the jurisprudence of the Inter-American Court

of Human Rights’ (2019) 7 Inter-American & European Human Rights Journal 94.

 Lewis Kinyua. ‘Evolution of Labour Law in Kenya: Historical and Emerging

Issues’ (2009) 4(1) International Journal of Law and Policy, 1.

 Lottie Lane ‘The Horizontal Effect of International Human Rights Law in Practice’
(2018) 5(1) European Journal of Comparative Law and Governance, 5.

 Louise J Obara, ‘“What Does This Mean?”: How UK Companies Make Sense of Human
Rights’ (2017) 2 Business and Human Rights Journal, 249.

 Marek Korcyznski and Claire Evans ‘Customer abuse to service workers: an analysis of
its social creation within the service economy’ (2003) 27(5) Work, employment and
society. 768.

 Olivier De Schutter, et al. ‘Commentary to the Maastricht principles on extraterritorial

obligations of states in the area of economic, social and cultural rights’ (2012) 34 Human
Rights Quarterly 1084.

 Peter Muchlinski ‘Human Rights and Multinationals: Is There a Problem?’ (2001) 77

International Affairs 31.

 Philip Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A
Reply to Petersmann’ (2002) 13(4) European Journal of International Law, 815.

 Phillip A. Woodward ‘Shue on Basic Rights’ (2002) 28 Social Theory and Practice 637,
642.

 Robert Dahl, ‘Pluralism Revisited’ (1978) 10(2) Comparative Politics 193.

 Sally Engle ‘Legal pluralism’ (1988) 22 Law & Soc'y Rev. 869.

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 Santiago Mejia ‘Weeding Out Flawed Versions of Shareholder Primacy: A Reflection on

the Moral Obligations That Carry Over from Principals to Agents’ (2019) 29(4) Business
Ethics Quarterly 519.

 Steven Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’

(2001) 111 Yale Law Journal, 443.

 Susan Hayter, Tayo Fashoyin, and Thomas A. Kochan. ‘Review essay: Collective
bargaining for the 21st century’ (2011) 53(2) Journal of Industrial Relations 225,237.

 Theodore Levitt, ‘The Dangers of Social Responsibility’ (1958) 36 Harvard Business

Review, 41,45. Bowen, Howard R. Bowen, Social responsibilities of the businessman.
(University of Iowa Press, 2013) 45.

 Thomas Nagel, 'Personal Rights and Public Space' (1995) 24:2 Philosophy & Public
Affairs 83.

 Walter O. Khobe, ‘The Horizontal Application of the Bill of Rights and the Development
of the Law to Give Effect to Rights and Fundamental Freedoms’ (2014) 1 Journal of Law
and Ethics, 77.

5. News reports

 Brian Stauffer, ‘Holding Companies to Account: Momentum Builds for Corporate

Human Rights Duties’ (Human Rights Watch, January 2020) https://www.hrw.org/world-
report/2020/country-chapters/global-2 Accessed on 27 July 2021.

 Charles Mokabi ‘East African Breweries Director quizzed over racial bias claims’ (Daily
Nation 18 March 2015) https://nation.africa/kenya/business/East-African-Breweries-
director-quizzed-over-racial-bias-claims/996-2658162-t74i1e/index.html Accessed 25
August 2021.

 Dominic Kirui ‘In Kenya, women bear the brunt as mechanisation wipes out tea sector
jobs’ (Equal Times, February 21, 2021) https://www.equaltimes.org/in-kenya-women-
bear-the-brunt-as?lang=en Accessed on 6 August 2021.
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 James Chen ‘Blue Chip’ (Investopedia 27 December 2020)

https://www.investopedia.com/terms/b/bluechip.asp

 James Manyika et.al, ‘A new look at how corporations impact the economy and
households’ (McKinsey & Company 31 May 2021) https://www.mckinsey.com/business-
functions/strategy-and-corporate-finance/our-insights/a-new-look-at-how-corporations-
impact-the-economy-and-households Accessed 29 July 2021.

 Jason Burke ‘Kenya to rule on gay rights as African neighbours look on’ (The Guardian
21 February 2019)
https://www.theguardian.com/global-development/2019/feb/21/kenyan-court-set-to-rule-
on-decriminalising-homosexuality Accessed on 7 August 2021.

 Milton Friedman, ‘A Friedman Doctrine: The Social Responsibility of Business’ The

New York Times (New York, 13, 1970):
https://www.nytimes.com/1970/09/13/archives/a-friedman-doctrine-the-social-
responsibility-of-business-is-to Accessed 30 July 2021.

 Patrick Alushula ‘EABL new mums to get 6-month maternity leave’ (Business Daily 28
May 2019) https://www.businessdailyafrica.com/corporate/companies/EABL-new-
mums-to-get-6month-maternity/4003102-5134670-wotrdn/index.html Accessed 25
August 2021.

 Radmilla Suleymanova, ‘Corporate giants are falling down on human rights, says study’
(Aljazeera 19 November 2020) https://www.aljazeera.com/economy/2020/11/19/big-
global-firms-falling-short-on-human-rights-despite-pressure Accessed on 27 July 2021.

 Steven Nickolas ‘What Qualifies a Company as Blue-Chip?’ (Investopedia 28 July 2021)

https://www.investopedia.com/ask/answers/031915/what-qualifies-company-blue-
chip.asp Accessed 12 August 2021.

 Whizy Kim ‘Boycotts Are More Popular Than Ever -But Do They Work?’ (Refinery 29,
August 4, 2020) https://www.refinery29.com/en-us/2020/08/9935797/do-boycotts-really-
work-cause-change Accessed 2 August 2021.

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 Winnie Atieno ‘EABL plans for 50:50 gender balance by 2025’ (The Nation 23
November 2020) https://nation.africa/kenya/gender/eabl-plans-for-50-50-gender-balance-
by-2025-3207010?view=htmlamp Accessed 25 August 2021

6. Reports from National and International Organisations

 EABL ‘2020 Integrated Report and Financial Statements’ (EABL 2020)

https://www.eabl.com/sites/default/files/eabl-2020-annual-report-abridged.pdf pg. 59, 65.
Accessed 25 August 2021.

 Equileap Gender Equality in Kenya: Assessing 60 leading companies on workplace

equality (Equileap Special Report 2019) p18.
https://equileap.com/wp-content/uploads/2019/11/Gender-equality-in-Kenya_Special-
report-by-Equileap.pdf Accessed 21 August 2020.

 Office of the Attorney General, National Action Plan on Business and Human Rights for
the Implementation of the United Nations Guiding Principles (NAP 2020-2025)
https://statelaw.go.ke/wp-content/uploads/2020/11/NATIONAL-ACTION-PLAN-ON-
BUSINESS-AND-HUMAN-RIGHTS-NOV-2020.pdf Accessed 5 August 2021.
 OHCHR, ‘Statement at the end of visit to Kenya by the United Nations Working Group
on Business and Human Rights’ (2018) available at:
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?
NewsID=23356&LangID=E Accessed on 27 July 2021.

 Safaricom ‘Safaricom Policies and Procedures – Safaricom’ (Safaricom 2021)

https://www.safaricom.co.ke/about/about-safaricom/suppliers/safaricom-policies-
procedures Accessed August 20, 2021

 UN Global Compact ‘EABL in 2019’ (UN Global Compact 19 September 2019)

https://www.unglobalcompact.org/participation/report/cop/create-and-submit/active/
432691 Accessed 25 August 2021.

 UN Human Rights Council, Report of the Working Group on the issue of human rights
and transnational corporations and other business enterprises, 28 April

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2015, A/HRC/29/28, available at: https://www.refworld.org/docid/5583f3144.html

Accessed 5 August 2021.

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