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Business & Human Rights, Access to Remedy - beating the bully and the importance of friends

Lawyers from Leigh Day’s International Department travelled to Nairobi, Kenya, to co-host regional conference on 9 October. Solicitor David Roberts discusses the issues highlighted at the event. 

Delegates at the Access to Remedy event
David is a solicitor in the international and group claims department, specialising in international human rights and environmental claims against multinational companies and claims against the British Government

Access to Remedy

Before I tell you about our recent conference in Nairobi, first let me ask you to imagine, if you will, that you’re a riverine fisherman and that the waters upon which you rely have turned a sickly red. They are now devoid of life, the consequences of a leak of waste waters from a nearby mine. This, or something like it, is the unfortunate reality of many of our clients. What would you do next? 

Do you make a complaint to the mining company? The last time you did that with a group of friends they told you to go away. Your peaceful protest outside their gates was then violently broken-up by local security forces. So, probably not then.

Perhaps you go to the local police or government administration instead and raise a complaint, but they tell you to go away – they’re simply not interested. 

Determined, you travel to the next town over where you know there is a local Court. You knock on the doors of the nearby offices, enquiring with the lawyers within if they’re able to help. They tell you that a legal claim will be expensive and ask if you have the money to fund it. You don’t.

It is tempting to say that this is where all too many complaints stop, but in reality most do not even make it this far. After all, the mine, the bully in our story, is bigger, so what could you possibly do?

The harsh reality is that on your own there is likely to be little you can do. This is not to say that it’s impossible, one person can change the world. But we are not all budding Erin Brockovichs or Ken Saro-Wiwas. Such people are exceptional precisely because their achievements are not normal. So again, what do you do? 

If I might answer, you find a friend – someone who is able and willing to help. Now, as egocentric and self-important as we lawyers are often thought to be, here I may shock you by saying that this does not have to be a lawyer. In fact it typically won’t be. It will likely be a local NGO or activist. 

It might be that you meet Barry, a local journalist who helps you to find a voice. Or perhaps Barry can’t help you, but Barry knows Sally, the head of a regional NGO, and he puts you in contact with her. Sally then utilises her contacts to help you raise your complaint with the mine’s London investors.  

You see, we can dwell and delve into the host of practical and procedural bars to Access to Remedy, but there are more central and fundamental bars that need to be addressed first. To fight back people have to first (1) know that they can (2) know how to do it and (3) where needed, know where to get help i.e. they need to know who their friends are, and the existence of a strong, informed and diverse network of ‘friends’ is a vital component to facilitating this.

Nairobi Conference on Access to Remedy, 9 October 2018

As lawyers in Leigh Day’s International Department we recognise that we have a part to play in this. We do not exist in isolation; we are a part of that group seeking to improve, and ultimately provide, access to remedy to those who have been wronged by the acts and/or omissions of multinational businesses. We have much to offer from our own experiences and much to be gained from the experiences of others.   

It was with this in mind that on 09 October 2018 we co-hosted a Regional Conference on Access to Remedy with the Kenyan Human Rights Commission (“KHRC”) in Nairobi, Kenya. The Conference was a side event to the African Coalition for Corporate Accountability’s (“ACCA”) 2018 General Assembly and was well attended by activists, NGOs and lawyers from across the continent. 

The purpose of the Conference was to draw together and strengthen the networks of the KHRC, ACCA and Leigh Day. To share experiences and lessons learned, to strengthen each link of the chain.

Elizabeth Kariuki of the KHRC gave a presentation on ‘the Ruggie Framework’. Mary Kambo, also of the KHRC, gave a presentation upon ‘Persistent & Emerging violations in key sectors of Kenya’ and she was joined by Edgar Odari, Executive Director of Econews Africa. Presentations were also given by respected Kenyan advocates, John Ohaga and Elisha Ongoya, on challenges in accessing remedies/justice in Kenya. 

The Conference was attended on behalf of Leigh Day by Partners Richard Meeran and Dan Leader, both of whom gave presentations on the past and present cases brought by Leigh Day’s International Department. The presentations were then followed by a lively discussion, with attendees putting questions to a Panel of the presenters.

Concluding thoughts

For most people the notion of standing up to someone more powerful than they are is frightening. The intrinsic imbalance in the relationship naturally leads to a fear that any attempt to resist the ‘bully’s’ transgressions might exacerbate the situation or that any attempt is simply pointless - they’re bigger than me, what could I possibly do? But when you get a little help from your friends, together you can push back.

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