Exploring the drivers of gendered grievance mechanisms: examples from the agribusiness, extractive and wind power sectors in Kenya

ABSTRACT

In accordance with the United Nations Guiding Principles on Business and Human Rights (UNGPs) businesses should establish or participate in legitimate remediation mechanisms for individuals and communities who may suffer adverse human rights impacts associated with their activities. Understanding the negative impacts of business operations on women is important for focussed prevention and response interventions. This paper considers the uptake by businesses in Kenya’s agribusiness, extractive and wind sectors in setting up operational-level grievance mechanisms (OGMs) to address gendered community-related grievances. While we do not assess the efficacy of such mechanisms, our research examines the negative impacts of eight projects on female community members. We argue that companies should establish gender-responsive OGMs as a first step towards better understanding and addressing their impacts on all members of affected communities. We found that the agribusiness companies had not established OGMs, while those from the extractive and wind power sectors had. We explore the role of external pressure as a possible contributing factor to this difference and briefly assess if existing law requires companies to establish such mechanisms.

KEYWORDS:

• Operational-level grievance mechanisms
• communities
• gendered impacts
• agribusiness
• extractive industry
• wind power

1. Introduction

This paper examines gender-related grievances from community members in select agribusiness, extractive and wind power settings in Kenya and existing mechanisms for their management.

Research has demonstrated that women and girls experience differentiated and disproportionate negative impacts of business operations and the need to strengthen business responsibilities and accountability in this regard (Eftimie et al. 2009; Wisborg 2014; Keenan et al. 2016). In the last few years, the still young debate on business and human rights has turned its attention to this issue. In June 2019, the United Nations Working Group on Business and Human Rights (UNWG) submitted to the UN General Assembly the report, Gender Dimensions of the Guiding Principles on Business and Human Rights (Gender Guidance), with the aim to sensitise all stakeholders on how to implement the United Nations Guiding Principles on Business and Human Rights (UNGPs) in a gender-responsive manner (UNHRC 2019). The report elaborates the gender dimensions of the UNGPs and proposes three interconnected gender windows – gender-responsive assessment, gender-transformative measures and gender-transformative remedies – and accompanying guidance on how gender can be incorporated into each of the 31 UNGPs, thus moving the report from the abstract to the practical. The illustrative actions included are useful in raising awareness and to guide actions by businesses and governments in meeting their obligations towards women and girls in the context of business activities and for bringing together duty-bearers and other actors in finding solutions for victims of business-related human rights abuses. Several other initiatives and reports exist that call on businesses to make the connection between gender and business. Examples include the Global Reporting Initiative (GRI 2020) standards that contain indicators on gender equality; the United Nations Women initiative, Women Empowerment Principles (WEP 2020) and associated Gender Gap Analysis Tool (WEP 2017), co-developed with, among others, the UN Global Compact; Oxfam’s (2020) work on gender and the extractive sector; the Organisation for Economic Co-operation and Development’s (OECD 2018) Due Diligence Guidance for Responsible Business Conduct and the 2030 Agenda for Sustainable Development whose Goal 5 is on gender equality (UNGA 2015).

Besides measures to integrate gender across business operations, equally important are the mechanisms through which persons affected by business activities can raise concerns, relay feedback, and seek remedy for harm suffered as a result of business activities. The UNGPs provide in Principle 29 that ‘business enterprises should establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted’ (UNHRC 2011). The commentary to Principle 29 further elaborates on the nature and structure of the mechanisms: those established and administered by a single enterprise or those established in collaboration with others, such as relevant stakeholder groups. Operational-level grievance mechanisms (OGMs) are meant to serve the needs of individuals and communities who are victims or at risk of being victims of harms occasioned by a company’s operations. They provide an opportunity to address adverse impacts in a timely manner through remediation and to prevent further harm from occurring by acting as an early warning system. Additionally, by analysing grievances received, a well-functioning OGM can contribute to the identification of systemic human rights risks and thus support ongoing human rights due diligence (HRDD) efforts, provided the findings are acted upon and integrated into company processes. OGMs are also subject to effectiveness criteria set out in Principle 31 of the UNGPs. The elements of the criteria are relatable to the principles of a human rights-based approach, seek to reduce imbalances that exist between companies and affected stakeholders and serve to ensure that rights-holders and indeed human rights are at the centre of OGMs.

Like the rest of the UNGPs, the effectiveness criteria for OGMs are gender neutral. However, the Gender Guidance recommends that consideration of the intersectionality of discrimination against women and access to justice be considered in applying the criteria (UNHRC 2019). Additionally, the UNWG in an earlier initiative elaborated on effectiveness in the context of access to remedy, recommending that OGMs should be designed with the diversity of stakeholders and the uniqueness of their experiences and expectations in mind (UNHRC 2019). The Gender Guidance draws on women’s perspectives to illustrate how this can be achieved, making it an excellent reference guide on integrating gender in remedial mechanisms. It thus seems that efforts to raise awareness on gender-differentiated impacts and advocacy for effective response mechanisms are underway. What remains to be seen is the impact in practice on reducing gender discrimination and fostering equality.

On the part of businesses, there is some evidence that a growing number, more so extractive companies (Kemp et al. 2011) and large multinational corporations (MNCs) are establishing OGMs (ICJ 2019). However, existing research focuses on pinpointing good practices in setting up OGMs (Knuckey and Jenkin 2015) with few studies on their effectiveness (ICJ 2019), and even more limited information on how gender-related grievances are handled within those mechanisms.¹ Through in-depth studies of a few mechanisms, lessons about what works and does not work well are being gathered (Scheltema 2013; Aftab and Mocle 2019; ICJ 2019). However, are these efforts reaching deep upstream where primary commodities are produced?

Using a comparative approach between agribusiness and extractive companies and drawing examples from Kenya, we seek to explore the following questions: How are agricultural and extractive businesses identifying gender-related grievances? What motivates companies to set up OGMs? What are the differences between extractive and agricultural businesses in addressing gender-related grievances and what is the significance of such differences?

The subsequent sections of the paper are organised as follows. After a brief presentation of the methodology, we discuss our main findings: that none of the agribusiness companies had an established OGM while those from the extractive and wind power sectors had; and that external pressure from civil society, project financiers, industry associations and multi-stakeholder initiatives are possible factors in contributing to this difference. We also briefly consider what role the law could play in requiring companies to establish OGMs and propose that where the law includes a requirement for community engagement or consultations companies should establish OGMs to complement such processes.

2. Methodology

The paper is based on a literature review; data collected through interviews with representatives from select Kenyan agribusiness and foreign extractive companies operating in Kenya; and our own experiences as social performance and human rights practitioners working with a variety of businesses in the extractive and wind power sectors. We have also been involved in the emerging multi-stakeholder dialogues relating to these sectors in Kenya, and national-level policy and regulatory reforms, and draw on these experiences in this paper. A total of 12 face-to-face interviews were conducted with executives of four companies from the agribusiness sector.

Our literature review included existing research on OGMs and a review of select relevant Kenyan statutes: Environmental Management and Coordination Act (EMCA), 1999 (Revised 2015); Land Commission Act, 2012 (amended in 2016); Community Land Act, 2016; National Land Commission Act 2012; Land Value (Amendment) Act, 2019; Petroleum Act, 2019; and the Mining Act, 2016.

In the first instance, the choice of agriculture companies was based on location, that is, local knowledge of where commercial farming takes place, the land-take (focus being on companies with more than 500 acres), and the existence of some form of conflict with the local community. Once the location was selected, the companies were then selected through convenience sampling based on the accessibility of the company as well as key informants. Lastly, those interviewed were able to recommend or suggest other companies plus respondents who could be willing to share information. In keeping with gender as the thematic focus, we also considered the fact that the agribusiness industry in Kenya has a large workforce from the community and specifically women. On the other hand, the extractive and wind power sectors in Kenya are like agribusiness in terms of large land-take. The choice to include the extractive and wind power sectors was taken because these are relatively new but hold great potential for further development. Moreover, past research in Kenya has documented that women in communities affected by these types of businesses experience a myriad of negative impacts associated with their operations. These include reduced access to livelihood resources, increased risk to personal safety including the risk of sexual and gender-based violence, health challenges, and further marginalisation when their interests are not taken into account in decision-making (IHRB 2016; Global Alliance for Green and Gender Action 2018).

The interviews were limited to senior company executives and representatives, specifically those authorised to provide information to external parties. To gain access to the executives for interviews, we had to first guarantee confidentiality and anonymity of companies and individuals; and that we were conducting academic research and not a journalistic expose. The interviews were conducted in December 2019 and January 2020 and each lasted between one and three hours; each company provided two persons, both of whom were present throughout the discussions. The interviews were conducted based on a questionnaire with open-ended questions aimed at establishing:

• the existence of grievance management processes within the sampled companies;

• if an OGM existed, what the key defining features were, particularly with regard to gender issues; and

• what type of safeguards were in place to protect complainants, specifically women, to ensure access to the mechanism.

We note several limitations. While the assessment of the effectiveness of OGMs should include the views of its users, our research primarily sought to establish what structures were in place to deal with gender aspects of community grievances. Therefore, no employees, community members or victims of abuses were interviewed. However, our literature review and field experience supplement a portion of these perspectives. The sampling method also does not constitute a representative sample and therefore the observations cannot be generalised within and across the sectors. However, the observations and findings form a useful point of departure as illustrative examples for discussions and for further research.

It is also important to note that the extractive sector in Kenya is relatively young and so is the debate around it. To put this into perspective, whereas there are over 40 oil and gas exploration licences, there has only been a single significant find to date and even that is yet to be developed. Similarly, in mining, only one large-scale mine is at the production stage, but many licences have been issued (Ministry of Energy and Petroleum 2013). The wind power sector is fast-growing thanks to the country’s high potential for wind power generation with several projects already operational and others under development (Kazimierczuk 2019). This can be contrasted with the agribusiness sector that comprises both small- and large-scale farming and that continues to be the mainstay of the Kenyan economy. Moreover, it has many players from single farmers to multinational corporations.

3. Discussion

In this section, we present our findings on how agricultural and extractive businesses are identifying and dealing with gender-related community grievances and what the possible implications might be for strengthening gender-responsive HRDD.

3.1 There is a need to focus on OGMs

According to the UNGPs, businesses should establish or participate in legitimate remediation mechanisms for individuals and communities who may suffer adverse human rights impacts associated with business activities (UNHRC 2011). It is envisaged that such mechanisms are dialogue-based and have: a learning purpose, for the company to understand the ramifications of its impacts on the community; and a remedy purpose, for the company to provide an early and effective remedy.

Participation of affected communities in the design and implementation of OGMs is an emerging standard in global frameworks (Kemp et al. 2011; UNHRC 2011). Despite normative expectations, however, in practice in most instances, OGMs are created by companies without the participation of the communities that are intended to use them (Kemp et al. 2011; UNHRC 2019), undermining their credibility (ICJ 2019). This shortcoming has led researchers and civil society organisations (CSOs) to suggest different typologies of OGMs that involve the community. Some of the proposed approaches include community-driven OGMs (Kaufam and McDonnel 2015); company-created human rights remedy mechanisms (Knuckey and Jenkin 2015); and a restorative justice approach (Scholmair and Gerlach 2019). In addition, there are guides on how to establish OGMs (e.g. Oxfam Australia 2010; CAO 2016). Despite the above, the practice of establishing OGMs is still rare in many contexts (Drimmer and Laplante 2015; ICJ 2019).

One of our primary points of enquiry across all settings was whether companies had an established OGM (as opposed to grievance mechanism/redress avenues for the workforce). While each of the eight companies considered for this paper had a complaint mechanism of one sort or another, the four agribusinesses only had mechanisms for dealing with labour-related disputes built into the human resources and administrative functions. This means that they did not facilitate reporting of grievances by community members. Unsurprisingly, they also did not have plans or strategies for community engagement, yet they acknowledged the existence of the following areas of conflict with the surrounding communities, several of which are gendered.

Water-related conflicts are common where communities and the farms share water resources (see also Leuenberger et al. 2021, this volume). Consistent with the findings by Lanari et al. (2016, 2018), relating to large scale or commercial farming and in particular horticulture, among the companies we looked at, farming practices are irrigation-dependent: use of large amounts of water could result in reducing its availability for domestic and other uses by communities related to their livelihoods. Moreover, from the interviews, it was noted that local communities that neighbour the agribusiness farms were engaged in small-scale farming activities, including in one case as contract farmers of the companies in question, which is not uncommon as small- and medium-scale farmers face pressure to integrate into global value chains (Hall et al. 2017), and must compete for water with the larger farms. Furthermore, women have been found to benefit less from these out grower and contract farming schemes due to limited tenure rights and lower access to capital (Hall et al. 2017; Osorio and Gallina 2018). While it has been observed that direct extraction from rivers by commercial farms has reduced in some areas (Lanari et al. 2016, 2018). The resulting water scarcity increases the burden on women and girls who frequently bear the primary responsibility to secure the water necessary for food preparation and maintenance of good hygiene for their families (Levy and Patz 2015).

Suspected water pollution (Zaehringer et al. 2018) through water run-off containing chemicals used in the farms, was the second water-related issue discussed (see also Leuenberger et al. 2021, this volume). Two of the agribusiness companies interviewed intimated that they have been accused of water pollution associated with increased disease burden by the local community. Their response was that they conduct monthly water quality checks. However, they did not have a system to disseminate the results to the communities or to involve them in the collection of testing samples. Indeed, commercial horticulture in Kenya has been found to use a lot of chemicals which can easily be washed into water resources posing dangers to users and the environment (Lanari et al. 2016). In addition to pesticide exposure by means of water pollution, past research has highlighted that women face high exposure to harmful pesticides generally by virtue of the fact that they provide most of the agricultural labour with resulting negative impacts on their health (Garcia 2003; UNDP 2011).

A third flashpoint is an access to wood fuel for cooking and fodder for domestic animals. As large farms are established and (sometimes) erect boundaries and fences where none existed or on unoccupied or community land, the land available for ecosystem services is diminished and so are the resources it may supply. Like water, the gathering of firewood and fodder is done by women, who often have to walk long distances when these resources are not available nearby or in some cases, venture into the expansive private farms at the risk of being apprehended by security guards employed to protect the farms. Similar impacts were observed in Cambodia where commercialisation of land led to the loss of commons thus increasing women’s vulnerability in fulfilling their gendered responsibilities (Joshi 2018 in Martignoni and Ulmas 2018).

Related to the foregoing is the fourth area of tension: trespass (from the perspective of the businesses) versus freedom of movement for ease of access to public amenities (from the communities’ perspective). For instance, the largest of the farms sampled for this research had land rich with fodder, firewood and even had a stream following through, but it had no physical fence – and women would not always realise they had trespassed, risking arrest and possible criminal charges.

In light of these types of conflicts, it is no wonder (as was shared by one company) that members of the local community were opposed to the acquisition of additional land, thus limiting the expansion plans of the company.

Research shows that community engagement is important for supporting dialogue in company–community relations (Dare et al. 2014). Yet, and in spite of the existing tensions outlined above, the four companies did not have clear strategies and procedures for engaging with communities but instead relied on local administrators, such as chiefs, elected leaders, and opinion leaders in dealing with the issues. This approach is far from ideal: these representatives do not always share the same views as members of the community; may have their own interests which could mediate what they pass on to the company; and it is often difficult for community members to hold them to account. International good practice requires good faith effort in engaging rights-holders in meaningful dialogue and to influence decisions (Vanclay 2015). Moreover, where companies operate among deeply patriarchal communities (as was the case here) the representatives are often men and prevailing gender inequality and cultural relations may bar women from raising grievances, particularly those of a sexual nature (see also Reynolds 2021, this volume). The resulting risk is that grievances remain unaddressed.

As noted above, the operations of extractive companies have gendered impacts and there is a wide body of scholarship focused on this issue. (Eftimie et al. 2009; Macdonald in Addison and Roe 2018). Anecdotal evidence shows that extractive companies are beginning to establish OGMs (Kemp et al. 2011; Wilson and Blackmore 2013), as was the case with those sampled in our research. Of these, the most advanced were those with committees that included community members, others who had dedicated community liaison staff with offices in the community or those that, while not having offices in the community, conducted regular visits to affected communities. Liaison staff were of mixed genders as were the community representatives in the committees, with the assumption that this would help improve their gender responsiveness. Indeed, the International Finance Corporation (IFC 2009) recommends functional inclusion of female staff members with an awareness of local gender relations in grievance management. As it was not within the scope of our research to assess the effectiveness of the mechanisms, we cannot comment on how well (or not) they work but the gendered nature of the impacts emerging from the research highlights the need for OGMs to be correspondingly gender responsive.

3.2 Exposure is an important push

From the interviews and the literature review, it is evident that the extractive industry faces greater exposure and scrutiny and hence is under pressure to do more in managing the human rights impacts of their operations (Kemp et al. 2011; Wilson and Blackmore 2013). This pressure is attributable to a number of factors including government policies that are built into licensing requirements, land acquisition and environmental protection processes; project financiers’ (multilateral banks and some institutional investors) requirements (Wilson and Blackmore 2013); and both mining and oil and gas industry associations have standards that seek to influence corporate behaviour to ensure respect for human rights and environmental protection, including the need for OGMs (IPIECA 2015; ICMM 2019).

On the other hand, global standard setting for the agricultural sector has not been achieved in part due to the sheer number of farms (Posner 2016) – the Food and Agriculture Organization (FAO 2014) estimates that there are over 570 million farms globally, 90% of which are family-run. The farms in our research were locally owned and financed from private sources and hence their only point of exposure is that they are part of a global supply chain.

3.2.1 Community and CSO push

The nature of the activities in the two sectors also seems to contribute to the differences between them in terms of how they approach OGMs. Agribusiness activities, particularly vegetable production, while similar to agricultural activities carried out by communities, differ in terms of the scale of production and amount of land required. In the companies sampled, neighbouring communities produce the same vegetables but on a smaller scale with some engaged as contract farmers for the agribusiness companies while others sell directly to packers in higher levels of the value chain. On the other hand, extractive and wind power generating companies introduce ‘alien activities’, whose impacts are not known or well understood by community members, particularly those engaging with them for the first time. One effect is that communities need more time and information to understand non-agricultural activities and they are more likely to attribute and report negative impacts than in the case of agriculture.

The discovery of oil in Turkana (Kenya) in 2012 (Ministry of Energy and Petroleum and Ministry of Mining 2013) raised the general public’s and government’s attention and interest in this sector. Around the same time, there was heightened activity in the mining sector, such as the completion of construction of the titanium project in Kwale (in 2013) (Base Titanium 2020), discussions on the possible development of the Kitui coal basin (in 2013) (Miriri 2011), and the reactivation of gold exploration in Vihiga (Chege 2020). Subsequently, in 2013, the government reviewed the Vision 2030 development plan to include oil, gas and mining as a new sector for growth with an expected 10% contribution to the gross domestic product (GDP), which is expected to enable the country to achieve middle-income status by the year 2030 (Government of Kenya 2013). This elevation exposed the concerned companies to scrutiny from civil society² while raising expectations of the local communities regarding the exploitation and governance of the resources, which led to them putting in place structures to manage emerging issues (Cordaid 2015). The wind energy sector has several ongoing projects with two sites in operation: one is state-owned and the other through private investment, and this too has attracted considerable scrutiny (Danwatch 2016), including cancellation of a project over land-related grievances among communities (Eberhard et al. 2016).

The agriculture scene in Kenya comprises different types of farming activities from peasantry, small- and large-scale farming, undertaken by individuals, public, state, to multinational corporations (FAO 2019). Agriculture is undertaken for both subsistence and commercial purposes. Commercial agriculture is undertaken on a small and large scale, and on family farms or by business entities: gender issues arise at every level, but it is the latter that is the focus of this paper.

Agriculture is the mainstay of Kenya’s economy contributing approximately 33% of the total GDP, 60% of informal employment and 60% of exports, with the largest contribution coming from crop production Government of Kenya 2019). Women’s employment in agriculture, including on family-owned farms is about 75% compared to 51% for their male counterparts, while low levels of land ownership limit their ability to join cooperatives and other farmer-organisations from where they can access resources such as inputs, training and loans (Government of Kenya 2019). In the cut-flower industry, women employees form up to 75% of the workforce, of which 65% are temporary and casual workers (Stewart 2010).

Human rights issues in the agribusiness sector have not escaped scrutiny with several companies having been accused of violations, though for the most part, the criticism has been in the domain of labour rights (Kenya Human Rights Commission 2002, 2012; van der Wal 2011), with little examination of the broader impacts of systemic abuse (Waithera 2016; Gisesa 2019). Our findings on the grievance mechanisms of the two sectors are consistent with the above: agribusinesses have mechanisms that primarily address workers’ issues, while the extractive and wind energy companies, which have had a significant number of community grievances, have established OGMs geared towards community issues. Unless companies in the agricultural sector also establish mechanisms for community engagement and grievance management, a significant gap remains in our understanding of the impacts of this sector and companies’ approaches to HRDD, as well as the effectiveness of such approaches in terms of addressing the industry’s adverse impacts on communities.

3.2.2 Pressure from project financiers

Our findings and analysis suggest that the nature and source of finance for the projects seem to play a big role in the social governance in these sectors. For the most part, the agribusinesses were started with the private capital of their owners and/or loans from local banks that did not come with conditionalities on social requirements. On the other hand, the extractive projects require huge capital investment, part of which is provided by international financial institutions that require projects to meet established social performance standards before releasing funds and to regularly report on their implementation throughout the lifetime of the project (Wilson and Blackmore 2013), as was the case for the extractive companies considered here. The standards often contain human rights aspects, including considerations of gender, indigenous and marginalised groups, and recognise the need for OGMs. A key example is the IFC Performance Standards which are increasingly being used as a global benchmark for many private sector projects (Smyth et al. 2015).

Our inference is that the development and implementation of OGMs in the agribusiness sector would require significant external push and input with a mixture of capacity building, experiential learning from the extractive sector, pressure from civil society groups, and government regulations.

3.2.3 Pressure from industry associations and multi-stakeholder initiatives

The agribusiness companies surveyed are members of Global Good Agricultural Practices, a voluntary certification scheme that promotes sustainable agriculture and helps participating producers access new markets (Global G.A.P. 2020). Participating producers are expected to undertake annual risk assessments in the areas of internal governance, employment of minors, minimum wage, sexual harassment, care for the environment, health and safety issues, and water management. Some of the standards cover community impacts but only incidentally, and from the interviews, it was not clear if the communities are involved in the auditing process. The oil and gas and mining companies can tap into guidance and tools on good industry practice that address a number of issues including OGMs and stakeholder engagement, developed by industry associations. Additionally, some extractive companies are part of multi-stakeholder initiatives that espouse human rights standards notably the Voluntary Principles on Security and Human Rights (2020) which provide guidance on security management in complex situations. While the text of these principles does not highlight gender-specific security concerns, the initiative has recently embarked on a project to build knowledge on the same. However, most of these initiatives lack an external accountability dimension that has been found to limit the contribution that civil society, communities and other stakeholder may bring to bear in terms of making participating companies more human rights compliant (Jerbi 2016).

3.3 Regulatory efforts to shape business conduct should consistently address the concerns of external stakeholders

Law is an important tool in shaping business conduct. Wilson and Blackmore (2013) found in their study that like international financial institutions, more and more national governments were requiring companies to identify persons likely to be affected by their projects and ‘to consult and engage with communities to prevent and mitigate negative social, environmental and economic impacts to the greatest extent possible, as well as [to identify] how investments in the community can be most beneficial’ (p. 21). However, there has been little research on whether governments require companies to establish OGMs.

Land use and acquisition and environmental protection are two areas where company-community tensions often arise (see also Hill et al. 2021, Nguyen et al. 2021, this volume) and there are several Kenyan laws focussing on the interaction between companies, communities, other external stakeholders and the natural environment in this regard. In this section, we briefly assess whether gendered impacts, grievances, and OGMs, as an avenue for dispute resolution, are envisaged in these laws and what the implications might be.

3.3.1 Land acquisition

In Kenya, land governance is managed under the Land Act 2012 (amended in 2015) and Community Land Act, 2016. The former applies to private and public land and the latter to community-held land. The Land Value (Amendment) Act, 2019 is another important law, the aim of which is to standardise the value of land in Kenya for the sole purpose of enhancing efficiency and expediency in instances of compulsory land acquisition. Private, public or community land can be the subject of compulsory acquisition. Other relevant laws are the National Land Commission (NLC) Act, 2012 (Revised 2015), Land Registration Act, 2012, and Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, 2012. For the resolution of disputes arising, the Land Acquisition Tribunal established under the Land Value (Amendment) Act, 2019 is the forum of the first instance and hears disputes related to compulsory land acquisition. The Tribunal can confirm, vary or quash the decision of the NLC. Appellate jurisdiction lies with the Environment and Land Court established under a similarly named Act of parliament.

The land acquisition processes for agribusiness and other businesses examined as part of our research had an important difference. The former acquired the land on a ‘willing buyer, willing seller’ basis or long-term private leases which ordinarily do not attract external scrutiny from those that have no legal and registered interest in the land. In the case of the extractive projects, the Mining Act, 2016 and the Petroleum Act, 2019, respectively, provide for land acquisition with the process linking back to the provisions under the Land and NLC Acts. Relating to the acquisition of private or public land, the Land and NLC Acts therefore remain the main law while for community land, the Community Land Act, 2016 guides the acquisition with the Land Value (Amendment Act), 2019 intervening regarding compensation. Land acquisition for other energy projects, such as wind energy, is provided under the Energy Act, 2019. Presently, both the Land and Community Land laws protect the right of women to participate in decision-making through first and foremost making sure that women are jointly registered as owners. Under all the above laws, the project proponent is required to obtain the consent to acquire land from individual or community owners, including women as their right to joint registration as owners is guaranteed in law. However, where the consent is withheld land could still be subject to compulsory acquisition. When projects in any sector require large tracts of land, displacements and disruptions of livelihoods can occur (see also Nguyen et al. 2021, this volume).

Gendered impacts in the land acquisition include: exclusion from community discussions relating to land use and acquisition (Oxfam 2017); lack of consideration of women’s economic displacement (Danish Institute for Human Rights 2018); loss of access to the commons (Joshi 2018); and exclusion from compensation and contract farming opportunities in absence of women holding formal land titles and recognition of their user rights (Osolio and Gallina 2018).

Where land is to be compulsorily acquired, the law requires that notice should be served to all interested parties and payment of compensation be made to the registered owner(s) and those established to have a legal interest in the land. It is thus imperative that the agency is mandated to undertake compulsory acquisition conduct prior due diligence to establish the registered owner(s) and interested parties as a prerequisite to negotiations and eventual payment of compensation. Even in highly patriarchal communities, companies must find workable strategies to ensure women’s equal understanding and participation. A 2017 report looking into the extent of compliance with the principle of free, prior and informed consent in an oil project found that while there were efforts made by the company to improve women’s participation, women were still not aware of the agreements, including cash compensation, reached between the company and the community (Oxfam 2017).

While the extractive and wind companies had established OGMs, a significant gap in the land acquisition legal regime is that there is no formal requirement for the acquiring company to establish a grievance mechanism procedure; rather, it envisages grievances arising out of land acquisition processes to be resolved administratively or through the courts. While formal legal structures are increasingly being used to resolve grievances related to compensation,³ the law remains underdeveloped to deal with the other negative impacts arising out of the loss of land, such as loss of common resources including water and livelihood restoration. These kinds of impacts, which can constitute human rights abuses, can be remedied earlier if there is a system in place at the local level through which a company can improve its understanding of impacts and take timely remedial action.

3.3.2 Environmental protection law

As set out elsewhere in this paper, environmental impacts of economic activities are not gender neutral (Resurrección 2013) and the consequent environmental injustice must be analysed from a gender angle (Buckingham and Kulcur 2009). This calls for gender-responsive environmental impact assessments (EIAs), meaning for each risk identified, the potential gender implication should be assessed, but also for specific consultation with women to identify additional risks that may otherwise not be flagged by other groups (see also Hill et al. 2021, this volume). EIAs can drive the establishment of OGMs, as Wilson and Blackmore (2013) documented in the case of the BP’s Tangguh Project in West Papua where, as part of the statutory mandated EIA mitigation plan the project proponent included the requirement for documentation of grievances.

The requirement for an EIA for proposed projects is anchored in the Environmental Management and Coordination Act (Amended EMCA), 2015. The law also identifies which types of projects are required to undertake EIA. Mining, oil and gas as well as wind energy projects are in that category as are some agricultural activities including aerial spraying and irrigation of more than 50 hectares and projects or persons that propose damming of water.

Public participation to seek the views of persons who may be affected by the project is a requirement under the law and regulations (Environmental Impact Assessment Regulations 2003) but there is no requirement to have explicit gender considerations in the EIA (see also Götzmann and Bainton 2021, this volume). Nonetheless, assessors are required to consider socio-economic and cultural factors and perhaps this is where gender considerations can come to the fore (Second Schedule, EIA Regulations, 2003). All the business activities considered in our research had undertaken EIA processes. Extractive projects and those financed by international financial institutions are required to make public their EIAs and face public pressure to do so; while the agribusinesses confirmed that they too had undertaken EIAs, they gave no indication of public scrutiny.

Principle 3 of the Framework Principles on Human Rights and the Environment calls on ‘states to prohibit discrimination and ensure equal and effective protection against discrimination in relation to the enjoyment of a safe, clean, healthy and sustainable environment’ (UNHRC 2018). By not having a gender perspective of the environmental impacts of projects, states risk indirectly discriminating against women and consequently falling short of their human rights obligations.

Our findings on the above-referenced laws and regulations expose gaps in identifying and addressing gender-related impacts and grievances, in the context of land acquisition and EIA. Additionally, there is no legal requirement for companies to establish OGMs, but in practice, the mining, oil and gas and wind power companies had such mechanisms while the four agricultural companies surveyed had none. The absence of an explicit requirement means that in absence of other external pressures, businesses are not motivated to put preventive and remedial systems and measures in place, and there is an overreliance on state-based administrative and judicial mechanisms. Without diminishing the importance of state-based mechanisms, some grievances can be addressed before resorting to legal avenues. For instance, not all grievances give rise to a legal challenge and there is the risk of leaving unaddressed those that do not meet the legal threshold and could over time escalate into larger disputes. However, under both the land acquisition and EIA laws, there is a requirement for community engagement and consultation which offers an opportunity to establish OGMs as recommended by UNGP 29, as part of a comprehensive approach to HRDD.

4. Conclusion

Based on our research and review of existing literature, we found that businesses in the agribusiness and extractive sectors in Kenya have gendered impacts and created grievances for local communities, but there are many gaps in our knowledge of how these sectors are addressing them. Our illustrative examples indicate that companies in the extractive and wind power sector may be more likely to have OGMs in place than their agribusiness counterparts, who despite acknowledging potential negative impacts on communities and on women, had only mechanisms for addressing worker grievances. Aware of existing community grievances, agribusinesses should put in place OGMs as part of building their internal capacity on grievance resolution, as well as to address grievances with which they may be involved.

We cannot generalise across sectors based on few cases but our research identified a link between external pressure and increased awareness of human rights responsibilities by businesses, with the extractive and wind power companies, which were under more external scrutiny, displaying more awareness as compared to the agribusiness companies. One important characteristic of the agribusiness companies was that they were at the producer level of the supply chain, raising the need for further investigation into how deep into the supply chain standards of responsible business conduct that are adopted higher up really go.

Lastly, we found that there are no explicit legal requirements for companies to set up OGMs under the current land or environmental protection legal regimes, leaving state-based mechanisms. Furthermore, besides providing for women’s participation in decision-making in the land laws, the two make no other gendered considerations. Without diminishing the importance of state-based mechanisms, OGMs arguably have an important role to play in addressing community grievances early on; where designed in a gender-responsive manner, they may also contribute to addressing some of the gendered barriers to access to justice that women often face. Further examination of key laws regulating business conduct and access to justice for gender-related grievances arising from business operations is, therefore, necessary to extend our knowledge in this regard.

Author Note

We have no known conflict of interest to declare.

Notes

1. A number of studies specific to the Porgera Gold Mine remedy mechanism which was set up to provide remedies to victims of sexual assault by company guards and other personnel do exist. See, e.g. Jungk, Margaret, Chichester, Ouida, & Fletcher, Chris. (2018). ‘In Search of Justice: Pathways to Remedy at the Porgera Gold Mine.’ Report. BSR, San Francisco, Aftab Yousuf & Mocle Audrey. 2019. ‘Business and Human Rights as Law: Towards Justiciability of Rights, Involvement, and Remedy.’ LexisNexis, Canada.

2. A good indication of this is the establishment of two leading civil society coalitions with a focus on oil and gas and on mining, the Kenya Civil Society Platform on Oil and Gas established in 2013 and Haki Madini established in 2014.

3. See, e.g. Patrick Musimba v National Land Commission & 4 others [2016] eKLR, Isaiah Otiato & 6 others v County Government of Vihiga [2018] eKLR, available at http://kenyalaw.org/caselaw/.