opinionBy Wambui Kimathi and Louiza Kabiru
A few months ago, we wrote an article in the Business Daily titled, 'How the UN human rights framework affects business'
The relevance of this piece is even more pertinent now following the Mukuru-Sinai slum fir tragedy in which 95 people have so far died and 160 others hospitalised in a fire tragedy that occurred after an oil spillage from the Kenya Pipeline Company (KPC) infrastructure at the slum. Thirteen had succumbed to their injuries at the hospital and the Kenya Red Cross says 118 people were reportedly missing by Thursday.
That article highlighted the genesis of discussions that led to the development of the UN's 'Protect, Respect, Remedy' Framework and the Guiding Principles for its implementation. It includes the roles of governments and business enterprises.
Governments, the framework states, have the primary duty to protect against human rights violations including those that occur due to acts of omission or commission by third parties such as business enterprises. It also clarifies the responsibility of business to respect human rights.
The question that one might ask is: What should a company do to respect human rights? One of the main actions required of enterprises is observe due diligence in their activities and understand their potential to cause the take pre-emptive action (s) to avoid doing harm.
The UN principles most importantly provided the government, enterprises and rights holders guidelines to ensure that constitutional guarantees placed on businesses in relation to the Bill of Rights are implemented. For example, in the case of Sinai fire tragedy, the right to life as guaranteed under Article 26 of the Constitution comes on top. Further, the supreme law binds all persons to the Bill of Rights. It defines a person under the article as "a company, association or other body of persons, whether incorporated or unincorporated". The law further guarantees remedial measures to persons for perceived infringement or threatened enjoyment of rights and basic freedom guaranteed under Article 22 while Article 23 empowers the High Court to hear and determine human rights violations related cases brought before it, including infringement by corporates, for redress.
These guarantees mean that KPC and other relevant government agencies could be held accountable for human rights violations as a result of the oil spillage.
What is apparent from the media reports is that this tragedy could and should have been avoided if the company had undertaken due diligence to identify risks that could easily arise from a pipeline passing in a densely populated area.
Instructively, the Energy minister Kiraitu Murungi admitted liability by stating that the KPC would compensate the victims of the tragedy.
Kenya Pipeline managing director also admitted that its pipelines were faulty and resulted in the spillage. Again, it has now come to light that PS Patrick Nyoike had asked KPC to refurbish the pipelines, a proposal that the Ministry of Finance reportedly rejected.
These statements and accounts by government officials and the parastatal chief are an admission of culpability for the deaths and injuries the residents of Mukuru Sinai suffered arising from a terrible act of omission.
Despite being aware that residents of the slum living within 30m of the oil pipeline was a "disaster waiting to happen" as Daily Nation writers John Ngirachu and Jami Makan observed in an earlier report, the company failed to act decisively.
The company's responsibility to respect human rights after this tragedy is twofold.
First, KPC urgently should conduct a human rights impact assessment to help it identify the full impact of the tragedy and areas where their operations may in future violate human rights. Secondly, and in tandem to this, the company should proactively relocate all people living within the 30-metre barrier along its 896km stretch of the pipeline.
This should be a priority, not only to the parastal but also all relevant government agencies.
However, the company should engage those who would be affected to ensure free and informed consent to relocate.
This means that the parastatal should initiate a dialogue with communities and Community Based Organizations identify the communities living near its pipeline for relocation.
The company and the government then immediately begin talks with community representatives and ensure that the concerns of the most vulnerable groups such as women, children and people with disabilities are included and their rights respected.
On their part, Kenyans living along the 30 metre barrier should also recognise the danger they expose themselves to and should participate in the dialogue with the company and government to seek a lasting solution.
However, the measures that we have recommended should not be construed to mean that the police and the director of public prosecutions should not commence investigations and prosecutions for persons who may have acted negligently.
Ms Kimathi is a commissioner and Ms Kabiru is a senior human rights officer with the Kenya National Commission on Human Rights.