A/HRC/41/43/Add.2
intersex persons, in the light of the Office of the United Nations High Commissioner for
Human Rights (OHCHR) Standards of Conduct for Business on the issue. 57
IX. Human rights due diligence in the context of development
projects
70.
The Working Group welcomed the accounts that it heard from different companies
about the way in which they have paved their way towards genuine management of human
rights risks. In this vein, the Guiding Principles provide for human rights due diligence, by
which business enterprises identify, prevent, mitigate and account for how they address
their adverse impact on human rights. The experts heard that human rights concerns were
only a matter for big businesses, since micro-, small and medium-sized enterprises did not
have the necessary resources and capacity. However, in an economy consisting principally
of micro- and small enterprises, this represents a real challenge, exacerbated by the fact that
such enterprises are exempt from reporting to the Government the main risks and
uncertainties that they face.58
71.
One key component of human rights due diligence is meaningful consultations with
potentially affected groups and other relevant stakeholders. However, the Working Group
heard several testimonies from community members that, in some situations, companies
had failed to consult communities at all. Civil society and communities explained to the
Working Group that they were not against economic development projects, but would like
to be consulted from the very beginning of projects, including on the way in which they
would be implemented. Such consultation would allow civil society and communities to
express their needs and ideas, which would contribute to preventing and mitigating
potential human rights abuse. Businesses should consult them in a manner that takes into
account potential barriers to effective engagement, such as power imbalances between the
parties resulting from lack of access to information, expertise and financial resources. This
engagement would also build trust among the actors.
72.
The Working Group recalls that the State should set out clearly the expectation that
all business enterprises respect human rights throughout their operations, providing
sufficient guidance to enable them to do so, indicating expected outcomes, helping share
best practices and advising on appropriate methods, including human rights due diligence.
The draft national action plan represents an opportunity to provide for human rights due
diligence, and to set out clear guidelines and parameters on non-financial reporting by
businesses to the Government.
73.
During its visits, the Working Group participated in a workshop organized by the
Global Compact Network Kenya for its members, which aimed to raise awareness among
companies on human rights, the Guiding Principles and human rights due diligence. The
experts commend and encourage the initiative of business associations to encourage peer
learning and a race-to-the-top dynamic among companies.
X. Access to remedies
74.
The Working Group noted that a range of remedial mechanisms were available to
individuals and groups to submit complaints regarding business-related human rights
abuses. However, the mechanisms are not widely known by rights holders and may not be
accessible, affordable or timely. The Working Group encourages the Government to clearly
outline to rights holders the remedial options which are available to them at all levels.
57
58
16
OHCHR, Tackling Discrimination against Lesbian, Gay, Bi, Trans, & Intersex People: Standards of
Conduct for Business (New York, 2017).
Companies Act, No. 17 of 2015, sect. 655 (3)–(6).
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