Making a climate commitment you can defend

The commitment is a representation

When an organisation announces a target, it makes a representation to customers, investors, lenders and regulators. Where that representation is misleading, or where it is made without a reasonable basis, the exposure runs through consumer protection and fair trading rules, through the disclosure obligations attached to listed and regulated entities, and through the warranties in contracts the organisation has already signed. Nothing about that analysis requires new climate legislation.

Governance before announcement

The commitment should be approved by the body that will be answerable for it, on the basis of a documented plan, with a named owner and a reporting line. Where a target was set by a marketing function and adopted by the board without interrogation, that sequence is usually apparent from the minutes, and it is the first thing an adviser to a complainant will look for.

Before the announcement

• A defined scope: which emissions, which entities, which sites
• A baseline year, and the methodology used to set it
• An interim milestone, not only an end date
• The plan, and the capital or operational changes it assumes
• The assumptions the target depends on, written down
• Who owns delivery, and who reports to the board
• How progress will be measured and disclosed

Precision is protection

Vague commitments attract more risk than specific ones, because a vague claim can be read against the maker. "Carbon neutral" without qualification invites the question of what is included and what has been offset. A narrower statement that is accurate is more defensible than a broad statement that requires explanation. Where offsets are relied on, say so, say what kind, and say what proportion of the claim they carry.

Say what changed

Targets are missed and plans are revised, and neither is a legal problem in itself. The problem arises when the change is not disclosed, or is disclosed in a way that obscures it. A target quietly restated, a baseline moved, or a scope narrowed without explanation will be treated as evidence that the original claim was never supportable. Report against the original commitment, then explain the revision.

The just transition question

Where meeting a commitment changes an operation, a supplier relationship or a workforce, the employment, contractual and community consequences are part of the plan and not a separate matter for later. Those obligations are frequently the most immediate legal exposure in a transition, and they are the least often assessed at the point the target is set.

This guide is general information about the law in Kenya and is not advice on your particular circumstances. Speak to an advocate about your own facts.