A/HRC/41/43/Add.2
446, 2016) and the Code of Governance for State Corporations. 16 The Working Group
welcomes the fact that existing regulations seek to foster transparency and accountability in
State-owned enterprises, including through reporting on corporate governance. It also
highlights that some regulations and guidelines for such enterprises provide for gender
sensitivity in terms of board representation. 17
14.
The experts encourage the Government to specify that State-owned enterprises have
the obligation to respect human rights and to lead by example, including by adopting
explicit human rights targets and monitoring achievement of them, with mechanisms for
accountability and follow-up. The Government should also develop specific guidelines on
how to report on human rights performance, and adopt clear criteria to determine when
State-owned enterprises should conduct human rights due diligence. In addition, such
enterprises should provide remediation for adverse human rights impacts that they have
caused or contributed to, as further developed in the report of the Working Group on the
issue of human rights and transnational corporations and other business enterprises
(A/HRC/32/45).
B.
Public procurement
15.
Article 227 of the Constitution requires public procurement to be conducted in a
manner that is fair, equitable, transparent, competitive and cost-effective. Under the Public
Procurement and Asset Disposal Act, 30 per cent of the budgetary allocation in
procurement and asset disposal planning must be reserved for enterprises owned by women,
youth, persons with disabilities and other economically disadvantaged groups. 18 The
Working Group observed with appreciation that these measures had opened up new
business opportunities for women-owned companies. The Access to Government
Procurement Opportunities programme, which aims at facilitating participation by
enterprises in public contracts, should be extended to population groups in rural and
indigenous areas in particular, to ensure that they fully benefit. 19
16.
The experts learned that the conditions set by the Government might not always
include respect for human rights as a prerequisite and that the conditions set for award of
public contracts prevented those who receive public tenders from respecting human rights.
It is noted, for example, that the amount provided in contracts for government cleaning or
security services may not be sufficient to allow the contractor to pay a minimum wage. The
State should therefore explicitly include respect for human rights as a condition
underpinning tender process and the whole procurement cycle, and implement effective
monitoring systems for the verification and enforcement of human rights requirements. It
should also require that suppliers and contractors conduct human rights due diligence. The
preparation of guidelines for public buyers to integrate the Guiding Principles and human
rights into the procurement process would be useful.
VI. Micro-, small and medium-sized enterprises and the informal
economy
17.
Micro-, small and medium-sized enterprises occupy as much as 85 per cent of the
market. Microenterprises account for 81.1 per cent of employment in micro-, small and
medium-sized enterprises. 20 These enterprises play an important role in generating
economic opportunities. As they are often embedded in the community context, they have a
good understanding of local context and maintain links with civil society. The Working
16
17
18
19
20
Kenya, Public Service Commission and State Corporations Advisory Committee, Mwongozo: The
Code of Governance for State Corporations (January 2015).
Kenya, Capital Markets Authority, Code of Corporate Governance Practices for Issuers of Securities
to the Public 2015, para. 2.1.5.
Public Procurement and Asset Disposal Act, No. 33 of 2015, art. 53 (6).
See https://agpo.go.ke/pages/about-agpo.
Kenya National Bureau of Statistics, Micro, Small and Medium Establishments: Basic Report 2016.
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