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This case story examines the effectiveness of a public inquiry as a non judicial mechanism for providing redress to victims of human rights violations arising from the activities of business enterprises. It details the experience of the KNCHR regarding a public inquiry it held in the Malindi district. It provides a background to the inquiry, outlines some of the gains and losses before outlining some key practical lessons learned.
Civil society organizations and residents of Magarini Division, Malindi district, in the Coastal province of Kenya, alleged that the activities of salt mining companies in the area had led to human rights violations.
One of the main functions of the Kenya National Human Rights Commission (KNCHR) as provided for under its constitutive Act of Parliament is to investigate, on its own initiative or upon complaint made by any person or group of persons, the violation of any human rights. The Act further provides that upon receipt of a complaint, the Commission may initiate such inquiry as it considers necessary, having regard to the nature of the complaint.
Beginning in early 2004, the Commission received complaints from associations, civil society organizations and residents of Magarini Division, Malindi district, alleging that the activities of salt mining companies in the area had led to human rights violations including:
- Forceful and arbitrary evictions of community members from their ancestral land
- Lack of recognition of community rights attached to the communally owned land
- Non-adherence to labour laws and standards
- Salination of fresh water sources due to salt harvesting
- Lack of clear social responsibility programs
- Intimidation of local residents by the provincial administration and police
- Poor health and general damage to the environment
Given the wide area covered, the large number of people affected and the complexity of some of the issues raised, the Commission was of the considered view that it needed to be addressed in a broad and systematic manner such as can be obtained through a public inquiry. An inquiry provides a vehicle that combines various strategies available to a national human rights institution and makes it possible to meet a variety of needs. It provides an opportunity for all points of view to be heard and considered. It is a suitable tool where violations are systemic and where there is need for public education. Considerations of transparency and equity were also key in choosing the inquiry method since the hearings would be held in the open and in locations easily accessible to the victims.
The Inquiry Hearings
Preliminary investigations and wide consultations were held with various stakeholder groups. The Commission met and held discussions with the community representatives, affected individuals, civil society groups, the management of salt companies as well as state actors in the area. The meetings had multiple objectives-to establish ownership and legitimacy, while at the same time informing the parties of the planned inquiry and how it was to be conducted.
The public hearings were subsequently held at Marereni-a small township in Malindi district of Coast Province from 4th to 8th July 2005. Its terms of reference were to investigate the veracity or otherwise of allegations by the community, to arrive at findings on the matters in question and to make such orders and/or recommendations as would be necessary to ameliorate or remedy proven human rights violations.
The inquiry panel, while led by Commissioners, also included experts in the fields that the petitioners had raised concerns about. The local community turned out in large numbers to attend the public hearings, suggesting that the choice of the venue made it accessible. During the five days, the panel heard testimonies from representatives of the communities, the companies as well as relevant government departments.
The inquiry's public hearings made some immediate gains on several fronts. The local people hailed it as a major milestone in their struggle to voice their complaints-for the first time, they had a forum at which they could voice their grievances. The companies and government departments also had an opportunity to publicly voice and explain their side of the story.
Several tangible gains were subsequently reported. Workers at the companies had voiced concerns about the lack of protective clothing. Information received at the Commission both from the companies and the local people showed that some of the companies had started providing their workers with required protective clothing and appliances including gumboots, goggles and gloves.
There were indications that the workers had become more empowered. The Kenya Salt Manufacturers Association (KESAMA) complained about increased agitation for better remuneration and working conditions,which the Commission took as a back handed compliment. The Provincial Administration also complained that the workforce had become agitated and was making ‘unreasonable’ demands on the companies, the effect of which was to complicate the dialogue the Inquiry hoped would follow from the clarity of grievances and the recommendations it provided.
By late 2005, reports indicated that the Ministry of Labour, Ministry of Public Health, and National Environmental Management Authority took keener interest on relevant matters at the salt companies. There were reports of staff changes and enhancement of capacity at the local labour office.
On the civil society front, the Inquiry and the subsequent meetings to share the report inspired the formation of the Malindi Rights Forum-a consortium of local community-based organizations that came together to address the salt manufacturing issues and related human rights violations.
Some negative reports were also received by the Commission from residents and civil society groups on the ground. The Provincial Administration claimed the inquiry had precipitated some insecurity, unrest and acts of disorder. It continued to downplay the efforts of the inquiry, to intimidate local people and send the message that it was business as usual. The complicity of the Provincial Administration continued. For example, local leaders alleged that the Administration leaked the identity of persons making complaints to the District Commissioner's offices to the management of the salt manufacturing companies. Such individuals felt exposed, vulnerable and in need of protection. Following the inquiry, a number of people who gave testimony were allegedly laid off.
Life after the Public Inquiry
The public inquiry called for extensive follow-up work. The Commission and other actors have engaged in various activities subsequent to the public hearings. The following are some examples.
In order to learn good practice in terms of community relations, the Commission undertook a ‘study tour” of Magadi Soda Company. A local company that had received international recognition for its Corporate Social Responsibility Program. It had for example won the Kenya Institute of Management’s Company of the Year (COYA) Corporate Citizenship Awards for six years in 2000, 2002, 2003, 2004, 2005, 2006 and 2007.
In partnership with the Kenya Federation of Employers, KNCHR undertook training of the salt manufacturing companies on human rights and corporate social responsibility, in recognition of the companies' need for capacity building in these areas.
The Commission also held several trainings and consultative meetings with community groups and civil society organizations in the area. The meetings focused mainly on training on advocacy skills as well as following up on the status of implementation of the Commission’s recommendations
The Commission held round table meetings with the development committee of the affected area to explain the recommendations made and the actions the KNCHR thought needed urgent action. The development committee consists of the heads of department of all public agencies and is headed by the District Commissioner. The District Commissioner then was willing to resolve the outstanding problems and proceeded to establish a committee that included representatives of the community and companies to draw up an implementation plan. Upon her departure however, the initiative died down. This shows how weak enforcement by the State can become a major impediment to pushing companies towards respecting rights
At the heart of the community's grievances is the question of land ownership. The community makes ancestral claims to the land which the government allocated to the companies. The land-ownership issue is very emotional and occasionally escalates into violent conflict particularly when ‘squatters’ face evictions to pave the way for expansion of company activities. It has a long history and has remained an unresolved grievance with high reputational costs to the companies.
The salt manufacturing workers and the community continue to look to the Commission to deliver on the inquiry recommendations. They acknowledge that the Commission made no promises due to its limited power in determining what other government departments do. They however expected the Commission to demonstrate more commitment with respect to the implementation of the report including occasional monitoring visits. The inquiry also created demand for more of the same. For example, the fishermen in the area wanted the Commission to conduct an inquiry into trawling by big fishing companies, which they allege are destroying their livelihoods. The Commission’s preferred approach has been to build local capacity to respond to these issues and it has worked with local leaders such as the local Member of Parliament and also civil society organizations based in the region to this end
Some Practical Lessons Learned
The Malindi Inquiry was different from other dispute resolution mechanisms that are available to the Commission in many ways. Some useful guidelines on undertaking an inquiry can be found at the public inquiries website. This section highlights what the KNCHR found to be unique, what worked and what didn’t.
Public Inquiries require extensive planning and consultations. As obvious as it may seem, it is vital to begin by getting the basics right. It is crucial to spend time to think through the whole process, to build clarity by seeking answers to all the basic questions. The Malindi Inquiry, being the first inquiry by the Commission, meant that it was, to a large extent, a learning experience; and the Commission benefited greatly by engaging in continuous debate on all those seemingly mundane issues and questions such as: Why an inquiry? After the hearings, what next? When we arrive for the hearings what exactly shall we do? Do we have rules? Do we have sample questions? Will the Commission bare its full teeth? Could the panel for example order compensation to individuals? If so, what about those who did not manage to be heard? What if….? The logistics, research and preparatory work necessary can be back-breaking.
Consequently, the inquiry needed to be more than just a team effort-it was a Commission effort. About a month into to the hearings over half of the Commissioners and staff were spending a considerable amount of their time on the inquiry. During the hearings the entire Commission scaled down on all other activities and all the Commissioners and members of various programs were involved in one aspect or other. Various programs needed to take leadership in their area of expertise. Lots of time and effort went into mobilization and background work: fact finding visits, a baseline survey, meetings with government representatives. A team led by a Commissioner was on the ground for an entire week prior to the hearings.
The selection of the panelists was key to the inquiry’s success - the external panelists were selected not just on the basis of the expertise in specific aspects of the inquiry but also for their interests in the issues. With hindsight, it would have been useful (though more expensive) to involve the panelists earlier in the preparatory stages-when they could act as a kind of advisory panel.
A media strategy involving the newspapers, as well as television and FM radio stations was put in place. The objective of the media strategy was to ensure that the issues surrounding the intended public inquiry were given publicity, clearly highlighted and understood by members of the public, government, salt mining companies and other stakeholders. Information gathered in the preliminary investigations was made available to the press, a media tour of the affected area was organized, feature articles with major newspapers were produced; Commissioners appeared in TV and Radio programs and adverts were placed in the print media. A team from the media accompanied the inquiry team through the hearings.
The Commission, however, could probably have done a better job in giving adequate notice to all those required to appear before the panel. In a few cases its summonses were ignored.
The public nature of hearings raises challenges of inclusiveness and participation-there were more people who wanted to give testimony than time could allow. A participatory approach was used to select those to be heard-the groups themselves, with assistance of legal counsel, selected their witnesses. Another innovative method used was to have side tents where individual petitions were received as the hearings went on.
In spite of efforts made and our insistence that the inquiry would be non-adversarial, perceptions of humiliation and antagonism persisted among companies and government officers. The feed-back we received was that the Commission at times talked down to other government officers, that the officers felt ridiculed and that this could have been avoided. The inquiry can therefore be a test of our values and virtues - patience, impartiality, humility, and rules of natural justice
Some challenges arose in the Malindi Inquiry regarding predictability – i.e. the need to have clear procedures that are known to all parties. Legal issues and matters of procedure arose during the hearings and threatened to bog it down- e.g. Were witnesses entitled to legal representation? Would they be subjected to cross-examination? Civil society groups objected to the Commission’s legal counsel. It helps to have comprehensive rules that are well understood by all parties.
One of the most important lessons that we learned was the importance of involving relevant government departments at various stages of the inquiry. First, they possess an incredible amount of knowledge and information regarding the issues; secondly, they may have to respond to allegations. Additionally, their goodwill will be needed as they play an active role in implementing the inquiry's recommendations. Government officers also have a story to tell and the inquiry can provide an opportunity for them to vent.
It turned out that some of the more important agreements and gains were made in caucuses, particularly with companies and government departments. The Commission held separate meetings for Civil Society Organizations (CSO), companies and government departments to disseminate the findings and to agree on implementation plans. Perhaps, had more similar meetings been held in the preparatory stages, the participation, particularly from government, in the hearings could have been better.
In retrospect, another lesson from Malindi is that some progress is possible even on issues that initially appear intractable. In Malindi, the land question has a long complicated history and it looked unlikely that the inquiry would be providing any new solutions. There was some temptation to drop the issue from the agenda. Surprisingly, efforts were made to resettle squatters and companies showed a willingness to allow squatters to cultivate while solutions are sought.
One of the main challenges that we faced was that of very high expectations-the public expected the land to immediately revert back to them, others expected compensation, the media was looking forward to a showdown etc. For quite a while, we were inundated with calls and demands. In truth, we may have contributed to the problem by over-promising, engaging in the media hype and so on. We may have sometimes given people false hopes. One of the tasks of the Commissioners when we met the public and civil society was to reiterate the Commissions role and limitations and that it would not operate outside the law.
We also learned that while it is institutions that we should seek durable solutions from, individuals can make a difference-it is important to identify those who can and nurture them. One District Commissioner (Agnes Ngetich) was instrumental in the pushing for positive changes experienced.
Lastly the idea of holding an inquiry was mooted in 2004 and we are still not done. The moral of that story - be ready to be in it for the long haul, results may take time.
Public Inquiries provide national human rights institutions with a grievance handling mechanism that can be quite effective. An independent evaluation of the inquiry observes that while it may not have achieved immediate life-changing positive results for the workers and community members, it galvanized the community, put government officers in the area in the spot light and most importantly, opened the salt companies to demands for public accountability on their human rights record. The evaluation noted that the companies were responding to community concerns, that there were attempts at coordination by CBOs to rally around the salt mines issue. It also observed that the inquiry re-energized citizen participation in governance issues and in particular in protecting their fundamental rights and freedoms.
Public Inquiries alone however will not provide all solutions to all grievances raised by communities against business enterprises. A recent review workshop co-organized by Coast Rights Forum, Heinrich Boll Foundation and the Kenya National Commission on Human Rights to determine the extent of the implementation of the recommendations of the inquiry report found that some of the recommendations were yet to be adequately implemented. This was the case particularly on issues touching on land ownership. Given the complexity of the matter however, it was never going to be easy to make progress.
 Kenya: Governance, Law and Order Sector (GJLOS) Programme; Kenya National Commission on Human Rights Case Study. Submitted to the Third Joint Review Meeting, March 2006.
Contributor(s): This article was modified by George Hodge (2).