BACKGROUND

The Kenya Human Rights Commission (KHRC) and Ndula Resource Centre (NRC) have been in a campaign, advocating for justice for communities and workers that have suffered adverse human rights impacts occasioned by Kakuzi Limited since 2003. Kakuzi, a subsidiary of Camellia PLC based in the UK, has been alleged over the years to have committed atrocities and malpractices ranging from: killings, rape, and other forms of sexual and gender-based violence committed by its guards causing grievous bodily harm, abominable labour injustices, wanton violence, bad corporate governance and gross, historical land injustices which have dispossessed more than 13 neighbouring communities[1] within Murang’a and the adjacent counties.

Despite protracted advocacy by the KHRC, NRC and Centre for Research on Multinational Corporations (SOMO), employing practically every strategy in the book, Kakuzi would not budge. KHRC’s last straw on the camel’s back was the involvement of Leigh Day, a leading UK law firm, to bring a suit in the English courts against Camellia for the egregious human rights violations.

It is this 17 year-campaign that has resulted in a huge reparative win for the victims of Kakuzi’s abuses. Camellia has finally bowed out and offered a settlement that will see the company part with more than 1 billion Kenya shillings. This is towards compensation for 85 claimants as well as legal fees since the case was filed in London. The company publicly announced on 11th February 2021 that it has reached an innovative and mutually beneficial resolution with regard to the claims against Kakuzi at settlements costing up to 4.6 million British Pounds (Kshs 694 million). These expenses are in addition to legal expenses that were earlier announced in October 2020 totalling Kshs 500 million. The claims ranging from rape, killings, sexual violence and assault by Kakuzi security guards were brought to the English courts in June 2020 by 85 Kenyan victims through the Leigh Day, with support of the Kenya Human Rights Commission and Ndula Resource Centre.

TOO LITTLE TOO LATE

In addition to the individual compensation, Kakuzi, working closely with Camellia has instituted other measures that the aggrieved communities consider too little too late and incapable of resolving the outstanding issues.

Firstly, Kakuzi will develop an Operational Grievance Mechanism (OGM) as a way of resolving grievances internally. However, the proposed OGM has many gaps, 1) it is limited to the discretion of the company, 2) there is no urgency by Kakuzi to implement it, 3) it is not premised on the Constitution of Kenya and other governance and human rights frameworks, 4) it is purely an internal framework and therefore fails to meet the required thresholds to hold the company accountable for gross violations.

Secondly, the company will establish a Technical Working Group (TWG) to survey and demarcate land which has previously been donated by itself to the communities. Led by a licensed surveyor, the TWG will benefit from the involvement of a county surveyor, the National Land Commission and representatives from the national government. Not surprising, the affected communities have been left out of this proposed mechanism. This offends Article 10 of the Constitution of Kenya that provides for public participation as one of the national values and principles of governance.

Thirdly, Kakuzi has proposed a raft of social development initiatives ranging from the construction of two community social centres, the building of charcoal kilns for the production of charcoal and engagement of safety marshals to patrol private roads and footpaths. We welcome these as innovative corporate social responsibility (CSR) initiatives. However, they do not constitute a comprehensive development framework for reparative settlement.

We further welcome the decision by Kakuzi to implement a Human Rights Defenders (HRDs) Policy. We, however, demand that the process of developing the HRDs policy be open to wider stakeholder consultations. The policy must also be in compliance with frameworks for the protection of HRDs such as the UN Declaration for Human Rights Defenders.

Relatedly, the proposed human rights impact assessment is a welcome move but is hugely insufficient in the absence of a fundamental paradigm shift in the attitude, behaviour and culture of Kakuzi. What Kakuzi needs is not a plethora of human rights tools but a deliberate shift in the manner it views and relates with its workers and host communities.

UNRESOLVED CLAIMS

  1. PUBLIC APOLOGY

It is preposterous that Camellia (and Kakuzi by extension) has failed to offer a public apology for the egregious violations suffered by the communities and workers living in and around Kakuzi. An apology and guarantee for non-repetition are the bedrock of a compensation framework such as the one that Camellia has invoked. It is therefore defeatist for the company to decline to offer a public apology. It is, however, not surprising that Kakuzi is unwilling to offer the apology going by its behaviour in October 2020 where the company denied all claims levelled against it, claiming that victims had been incited and coached by human rights organisations. In its statement issued on 11th February, Kakuzi is publicly unapologetic when it says that it is not a party to the litigation or the settlement and that it does not know the identities of the claimants making it very difficult to hold any individual accountableKakuzi must stop playing mind games with Kenyans. The company is fully aware that the UK Court upheld an Anonymity Order with a view to protecting victims from possible reprisal from Kakuzi.

  1. SURRENDER OF ROADS

Kakuzi has begrudgingly surrendered three roads for motorable vehicle access by the communities against the six roads that communities had demanded. The surrender comes with inconceivable conditions to the extent that Kakuzi retains the arbitrary self-imposed power to withhold access for maintenance of the roads and fielding of safety marshals to improve safety and security.

The roads that Kakuzi proposes to open are Miltons Ridge to D424, Kakuzi Hills Road and Kakuzi Primary School to Ithanga-Kakuzi Hills.

The community had demanded the opening of the following roads: 1) Kitito-Munyu-Kakuzi Hills Rural road (2315), 2) Kinyangi-Kaguru-Mathimbiriri/Gaichanjiru-Kakuzi Hills road, 3) Murram/Matungulu-Kihato-Kakuzi Hills road, 4) B67 Kilimambogo-Makuyu-Kakuzi Primary School-Sunset-Kakuzi Hills road, 5) E1577 Gathungururu-Gatoromera-Thangira road, and 6) Masitima-Mangamate-Money road.

Noting that Kakuzi has no mandate to maintain roads nor has its capacity to offer security and safety on such roads, we demand the immediate withdrawal of the ludicrous conditions.  We also note with concern that communities, such as Kinyangi and Gikono-Kangangu, that have been at the forefront in calling out Kakuzi have been deliberately left out of the road settlement. Kakuzi must cease and desist from incubating further acrimony by victimizing and relegating communities that have rebutted the company’s high-handedness in the past.

  1. WITHDRAWAL OF INSIDIOUS COURT CASES

The affected communities have previously demanded, as a pre-condition to an out-of-court settlement, that Kakuzi withdraws all the insidious cases instigated against aggrieved workers, host communities and other affected groups. Specifically, the communities demanded that a case (JR 94/2019) challenging the implementation of an award granted by the National Land Commission (NLC) on 7th February 2019, be withdrawn with immediate effect. The orders granted by the NLC required Kakuzi to surrender ALL public utilities on their land including schools, markets, police stations, hospitals, public roads of access, wayleaves and easements to national and county government as appropriate. The second matter is a constitutional petition (CPET 255/2018) that challenges the constitutional mandate of the NLC to determine historical land injustices. Instead of immediately withdrawing these cases, Camellia indicates in its Settlement of Claims in Kenya that a Technical Working Group being instituted at Kakuzi will not have any involvement in the consideration or determination of any issues the subject of proceedings before the NLC, the Kenyan courts or any other decision-making tribunal of competent jurisdiction.

  1. OUTSTANDING LAND CLAIMS

Kakuzi has declined to address the unsettled land claims. It cannot be gainsaid that the cause of human rights violations experienced by communities living in and around the company is the unresolved land claims.  And as if in complete mockery of a community that Kakuzi pushed to the rocky hills known as Milimani, the company now plans to re-resurvey the Ithanga-Kakuzi hills to complete its past donation of that land. The Milimani area was condemned by a Ministry of Lands and Resettlement Taskforce Report of 29th June 2004 on the Status of Kakuzi Squatters as being un-arable, harsh, hilly, rocky and of low agricultural potential and hence difficult for settlement operations. It is on these very hills that Kakuzi now wants the government to complete the settlement for the Milimani community.

We call the state and non-state actors below whose laxity over time has entrenched the culture of impunity in Kakuzi and other corporate entities in Kenya.

Our relentless demands and actions moving forward:

  1. WE CALL UPON the Murang’a County Assembly to ensure that Kakuzi land leases are not renewed until all claims on historical land injustices are resolved.
  2. WE DEMAND THAT the UK market sustains the current boycott of Kakuzi produce until all pending claims are addressed. We will further initiate an engagement with other Kakuzi markets to boycott any produce coming from Kakuzi until there is a demonstrable change in attitude and behaviour on the part of Kakuzi.
  3. WE SHALL ENGAGE the national Parliament and the Senate for investigation of all pending claims and institution of appropriate accountability measures against Kakuzi.
  4. WE DEMAND THAT the National Land Commission implements its decision of February 2019 directing the surrender by Kakuzi of ALL public utilities on their land including schools, markets, police stations, hospitals, public roads of access, wayleaves and easements to national and county government as appropriate.
  5. WE SHALL continuously monitor the behaviour of Kakuzi to ensure non-repetition of violations, non-discrimination of workers and communities especially those that have been involved in calling out the company.
  6. WE CALL UPON the certification bodies that work around Kakuzi to be more vigilant and inclusive in assessing the company’s compliance with the set standards

-END-

Signed by:

The Kenya Human Rights Commission

Ndula Resource Centre

14th February 2021.