At least four men armed with machetes and clubs broke into Anne Johnson’s home. They forced her husband and 11-year-old son into the bedroom and kept Anne and her teenage daughters in a separate room. To this day, she doesn’t know for certain if the men who raped her, her husband, and her daughters were her coworkers. “They spoke the local language,” Anne testified, but “they blindfolded us so we could not see who they were.”
By 2007, when the attack took place, Anne and her husband, Makori (their names are pseudonyms to protect the family from retaliation), had lived and worked for more than a decade on a Kenyan tea plantation owned by Unilever, the London-based household-goods giant known for such brands as Lipton Tea, Dove, Axe, Knorr, and Magnum ice cream. In December of that year, hundreds of men from the neighbouring town of Kericho would beat, maim, rape, and butcher the plantation’s residents during a week of terror.
The attackers killed at least 11 plantation residents, including Makori, whom they raped and fatally wounded in front of his son, and one of the Johnsons’ daughters. They looted and burned thousands of homes and injured and sexually assaulted an unknown number of people, who were targeted because of their ethnic identity and presumed political affiliation.
A contested presidential election triggered the violence. The candidate favoured by Kericho’s local population – and openly backed by many Unilever managers – lost to the politician perceived to have support from minority tribes. The massacre was not confined to the plantation or to Kericho. More than 1,300 people died in post-election violence across Kenya.
Unilever said the attacks on its plantation were unexpected and that it therefore should not be held liable. But witnesses and former Unilever managers say the company’s own staff incited and participated in the attacks. They made these allegations in 2016 in written testimony, after the case was submitted to a court in London. Anne and 217 other survivors wanted Unilever Kenya and its corporate parent in the United Kingdom to pay reparations. Among the claimants were 56 women who were raped and the family members of seven people who were killed.
In hundreds of pages of witness testimony and other court records and in interviews I conducted, the survivors describe how, in the run-up to the election, their colleagues threatened to attack them if the “wrong” candidate won. When they reported these comments, their managers dismissed their concerns, issued veiled threats, or made derogatory remarks of their own.
Former managers from Unilever Kenya admitted to the court that the company’s top management, including then-managing director Richard Fairburn, discussed the possibility of election violence in several meetings but only ramped up the security for its senior personnel, factories, and equipment.
Unilever Kenya insists it is not responsible and blames the police for acting too slowly. Meanwhile, its corporate parent in London maintains that it owes the workers nothing and that the victims should sue the company in Kenya, not in the UK. But the workers say that a lawsuit in Kenya could spark more violence, including from their earlier assailants, some of whom still work at the plantation.
In 2018, a judge in the UK ruled that Unilever’s London headquarters could not be held liable for the failures of its Kenyan subsidiary. Now, Anne and her former coworkers are looking to the UN Working Group on Business and Human Rights, which is expected to decide, over the next few months, whether Unilever has failed to meet the United Nations’ guidelines for responsible business behaviour. As Anne explained to me, “The company promised they would take care of us, but they didn’t, so now they should pay us so we can finally rebuild our lives.”
Unilever’s hilly tea plantation in Kenya’s southern Rift Valley covered about 13,000 hectares in 2007. With a population then of roughly 100,000 people, including about 20,000 residential workers and their families, and boasting on-site schools, health clinics, and social facilities, the estates are essentially a company town, and a cosmopolitan one: The workers belong to several ethnicities from across the country.
The Johnsons hailed from Kisii, a county two hours away from the Unilever estates, and identify ethnically as Kisii. On the plantation, the Kisiis made up nearly half the residents, but in nearby Kericho – the homeland of an ethnic group called the Kalenjins – they were a much smaller minority. And many people in Kericho looked down on the Kisiis and other “foreigners”. The plantation reflected this divide: The Kalenjins were mostly managers, and the Kisiis and other minorities worked primarily as tea pluckers.
The couple spent the last Sunday of December 2007 as they did any other day – in the field with a basket on their backs – though they expected the evening to be tense, since the election results would be announced in the late afternoon. Earlier in the week, millions of Kenyans had gone to the polls to elect either Raila Odinga, who led the Orange Democratic Movement (ODM), or Mwai Kibaki, of the Party of National Unity (PNU), as their new president.
Anne hadn’t voted herself. Weeks earlier, she had applied for leave to travel to Kisii, where she was registered to vote, but her manager declined the request, she said. This experience was common among the members of minority tribes, said Daniel Leader, a lawyer and partner at the London law firm Leigh Day, who represented the survivors in court and whose team interviewed all 218 claimants.
The impending elections had exacerbated tensions between Unilever’s Kalenjin workers and their more junior Kisii colleagues. “They assumed we Kisiis backed Mwai,” Anne explained, whereas the local Kalenjin population were overwhelmingly pro-Odinga.
In the weeks leading up to the election, survivors say ODM-supporting staff turned the tea estates into a fiercely pro-Odinga space, organising political rallies and strategy meetings on the property. Anne told me that the perception of the Kisiis as Kibaki supporters led some Kalenjins to treat them with hostility. She said that team leaders, for example, began to allocate her job duties to non-Kisii workers. Other coworkers stopped talking to her altogether. To Anne’s distress, she found leaflets with hateful slogans like “Foreigners go home” in the residential areas, making her worry that “something bad may happen after the election.”
Anne was frightened but kept quiet. “The company is so big. I assumed they would protect us,” she told me. Those who felt less assured and who asked their team leaders and managers for protection were met with indifference, according to survivors. In court testimony, many recalled how various managers ignored their pleas for more security or dismissed them by saying, “It’s just politics.” Other managers instructed the concerned workers to lobby and vote for Odinga, saying they would be “forced to leave” if they didn’t.
An estate manager admitted to the London court that Unilever Kenya’s senior management – including Fairburn, the managing director – had been aware that “there would be unrest and that the Plantation could be invaded”. They had discussed the need for extra security in at least three meetings in December, he said. But management took measures only to “secure company property, factories, machinery, stores, power stations and management housing,” while “no thought was given to increasing the security of the residential camps in order to protect the workers”. Another former Unilever manager corroborated this claim.
Fairburn, who was allegedly present at them, refused to comment on the meetings when I called him. To this day, Unilever claims that it could not have predicted the attacks, even though the media in Kenya and internationally, including the BBC, Al Jazeera, the New York Times, and Reuters, had reported on the impending ethnic violence.
“Anyone who knew anything about the Kenyan election in 2007 knew it had the potential to end in significant and widespread violence, and that this violence would largely break down along lines of identity and affiliation,” said Tara Van Ho, who teaches law and human rights at the University of Essex. Both Unilever Kenya and its corporate parent in London should have known that the workers and their families were at risk, she continued. To protect them, she argued, Unilever could have hired extra security guards, trained its security personnel and managers, and solidified their buildings or evacuated residents for the period immediately surrounding the election.
Instead, said Leader, the workers’ London attorney, Unilever “created a situation where [these employees] were sitting ducks—at risk because of their ethnicity”.
Meanwhile, Unilever Kenya’s managing director and other executives went on holiday before the crisis, according to the former managers, and the company evacuated the remaining managers and expats on private jets once the violence broke out.
When the news of Kibaki’s victory came on Sunday evening, Anne was preparing supper with her family. Moments later, she heard people screaming outside and knew they were in danger. “We quickly locked our doors,” she said.
That night, hundreds of men armed with machetes, clubs, kerosene jars, and other weapons invaded the plantation. They looted and burned thousands of Kisii homes – which they marked with an X – and attacked their inhabitants.
Court records paint a harrowing picture of what unfolded on the plantation over the next week. People were gang-raped and viciously beaten and saw their coworkers set on fire. When they fled for safety to the tea bushes, the attackers pursued them with dogs.
“We do not know the total number of people who were raped, killed, and permanently disabled,” Leader told me. He thinks the 218 claimants he represented are not the only surviving victims. “Many people are too scared of retribution or renewed attacks from colleagues who they continue to work alongside of,” he said.
Concern about violent reprisals was one reason the survivors wanted to sue Unilever in the UK. Another was that Leigh Day represented them for free, whereas in Kenya the survivors would not be able to afford legal counsel.
Leigh Day argued that their Kenyan clients had a right to sue Unilever in London, since UK law allows workers from international subsidiaries to sue the UK-based parent companies if, among other things, they can show that the corporate parent plays an active and controlling role in the subsidiary’s day-to-day management. Unilever, Leigh Day argued, clearly did.
Unilever’s lawyers nonetheless insisted that the victims should file their case in Kenya and suggested the tea pluckers “band together” and “raise funds from friends and family”.
Multiple victims said they recognised their attackers as Unilever colleagues. One woman told the court she was attacked by five of her colleagues, whom she identified by name. The men “started beating me with a metal rod on my back and on my legs and were going to rape me,” she stated in witness testimony, until “a Kalenjin neighbour who was a male nurse intervened to stop the attack”.
In court, Unilever denied that its own staff participated in the attacks. But when I asked Unilever representatives how the company knew this, they declined to comment further on the issue.
After the attackers left, the Johnsons fled and hid for three nights in the tea bushes before making their way to the police station in nearby Koiwa, covered in mud and blood. From there, police officers escorted them to safety, and the family was able to escape to Kisii where they kept a small plot of land. Without savings, they could not afford the hospital costs for either their eldest daughter, who suffered severe injuries and got weaker by the day, or for Makori, who had internal bleeding. In the months that followed, both of them died in their mud house in Kisii.
Anne said that the only communication she received from Unilever since the attacks was an invitation to return to work months later and a letter offering her about $110 in compensation. The letter suggests that this amount was set and paid for by Unilever’s corporate headquarters in London.
“On behalf of the entire Unilever Tea Kenya Ltd family,” it reads, “we thank Unilever for their understanding, material and moral support and we hope that this timely gesture will go a long way to bring normalcy back to our employees and their families”.
Anne told me she never returned to the plantation because she can’t leave her son, now in his mid-20s. “He developed very bad seizures and panic attacks after what happened and needs constant care,” she said. Severely traumatised and unable to afford the psychological treatment they need, her son and daughter both stopped going to school. “We live off gifts from relatives and neighbours and the little maize we grow on our land,” she said.
The claimants say that Unilever owes them meaningful reparations, but Unilever insists it has already compensated them. The company’s spokespeople told me that it has paid all of the workers who eventually returned to the plantation with cash and new furniture and has also offered their families free counselling and medical care. But they won’t say how much the company gave them or comment on the letter that Anne shared with me.
In the summer of 2018, Anne and a group of other victims rebutted these claims in a letter to Paul Polman, the company’s CEO at the time: “It’s not right that Unilever has said it helped us when we know that is not true,” the letter stated. It continued:
Unilever just wanted us to go back to work as if nothing happened [and those of us who did] were told we must not talk about what happened. We are still scared that we will be punished if we speak about the violence.
Unilever says that after the violence every employee was given “compensation in kind” to offset our lost wages and that we were given replacement items or cash to buy new items to replace our stolen property…but those who were too afraid to return got nothing and only some of those who returned were given KES12,000 [$110], a little more than a month salary, and a little maize, which was then deducted from our salary. We were told that if we saw people with our belongings we should say nothing.
Polman appears not to have responded to the letter.
Under UK law, a parent company can only be held liable for the health and safety breaches of its subsidiaries if it exercises a high degree of control over their safety and crisis management policies.
To prove to the court that the UK parent company did indeed exercise such control over Unilever Kenya, Leigh Day submitted witness statements from former workers, who testified to the frequent visits made by London managers, and from four former managers, who gave evidence that the head office shaped, supervised, and audited the safety and crisis management policies of Unilever Kenya and even made its own safety protocols compulsory. This meant that, as one senior manager with over 15 years of experience with the company put it, Unilever Kenya was “confined to strictly complying with the policies and procedures which had been cascaded down by [Unilever] Plc”. Another senior manager stated that London’s “checklists and detailed policies had to be complied with or an employee would be dismissed or face some other sanction”.
These testimonies seemed to support Leigh Day’s claim that the London headquarters shared liability. Yet to prove it to the court, the law firm needed access to the actual text of the protocols that the managers described. However, since these were pretrial proceedings—meaning that the court had not accepted jurisdiction—Unilever had no duty to disclose relevant materials and simply refused to hand over the documents.
The judge’s ruling made clear that the “weakness” of their evidence played a major role in her decision to deny the Kenyans jurisdiction. Human rights scholars and corporate accountability advocates condemned the ruling. The court had created a catch-22 for the workers, Van Ho observed: “The claimants couldn’t get the documents that showed Unilever UK did something wrong until they had the documents that showed Unilever UK did something wrong”. It’s “dizzying,” she said, and “an unfair expectation for employees who have a lot less power than the multibillion-dollar company that employed them.”
Anne said she remains hopeful that international human rights advocates will support her cause. With other victims, she recently filed a complaint against Unilever at the United Nations, arguing that the company violated the UN Guiding Principles for Business and Human Rights. One requirement is that companies must ensure that victims of human rights abuses in their supply chain have access to remediation. Van Ho anticipates that the UN body, which is expected to reach a decision soon, will agree that Unilever breached these guidelines. “Hiding behind legal loopholes and refusing to disclose relevant information to avoid paying reparations is the exact opposite of what the Guiding Principles prescribe,” she said.
Though the United Nations can’t force Unilever to pay up, Anne hopes the case will generate the attention and public pressure necessary to push the company in that direction. When asked what it would mean to her if the workers succeed, she told me, “It would be the greatest moment in my life.”
Maria Hengeveld is an investigative journalist, focused on workers’ rights and corporate accountability, and a PhD researcher and Gates Scholar at King’s College, Cambridge.
Source link : https://thewire.in/world/kenyan-tea-workers-demand-reparations-from-unilever-for-failing-to-protect-them-from-attacks
Publish date : 2021-03-17 07:40:43