Oyeniyi Abe is a lecturer in Law at the Huddersfield Business School, University of Huddersfield, United Kingdom. He is also a Research Associate at the Centre for Comparative Law in Africa, University of Cape Town, South Africa. A Fellow of the United Kingdom’s Higher Education Authority, the University of Benin graduate holds a PhD in Commercial Law from the University of Cape Town; a Master of Laws (LL.M.) from University of California Berkeley, and another LL.M from Central European University, Hungary. In this interview with Deputy News Editor JOSEPH JIBUEZE, he speaks on speeding up justice administration, how to revive Nigeria’s education sector, and the implementation of business and human rights norms in Africa, which is the subject of his new book.
Delays have continued to mar justice dispensation and delivery in Nigeria, thereby encouraging impunity. What do you think the Judiciary in Nigeria and its administrators are not doing well or can do better?
Most African countries have laws that demand companies remedy any adverse human rights impact of their activities. This includes clean-up efforts, cooperation with state agencies to document pollution and compensation for victims of corporate actions. African courts should strengthen their ideological orientation in safeguarding people’s lives that are at risk at the hands of corporate actors. Lack of access in most African jurisdiction is exacerbated by several factors.
What are some of these factors?
They include widespread corruption in the justice system, delays in prosecution, unnecessary public holidays, inadequate scientific proof, the inability to secure legal representation, a lack of judicial independence (economic and political pressures), lack of training, and lack of expertise and support for state prosecutors to enable them to investigate individual and corporate-related human rights abuses. An increasing problem is the inability to keep up with new directions and trends in the business and human rights debate. While South Africa is innovative in terms of establishing specialised courts to address emerging issues, Nigeria lumps all manner of claims in the same court – making administration of justice a herculean task. A significant number of judges also need to be re-trained in professional ethics. The principle of a separate legal personality often occasions difficulty, as it becomes difficult to ascribe liability to members of an extensive corporate entity.
How can this problem be addressed?
Judicial understanding forms part of environmental democratisation. Judges must be trained on recognising these normative instruments as critical part of right based approach to development. Adequate training for judges, investigators, and corporate lawyers on business and human rights must be fully supported and encouraged. The proactive nature of the judiciary in terms of the radical realisation of socio-economic, cultural, and human rights is well recognised in South Africa, where the courts have progressively realised socio-economic rights to the citizens.
What is your assessment of the state of human rights in Africa within the context of business?
Over the last several decades, globalisation has generated substantial changes in the structure of international society. One of the effects of globalisation is the development of diverse mechanisms in which corporate entities approach political, legal, and economic implications of their operations. The emergence of non-state actors in global governance has shaped the discourse surrounding human rights responsibilities of corporate entities. This creates a dilemma. How do we control the potential monstrosity of non-state actors in shaping discourses not only at the global or continental level, but at the local level? Should there be development of new regulations and what are the implications of enforcement. Should there also be voluntary mechanisms propping up companies to be engaged in socially-responsible investments?
What is the extent of these rights issues and their implications?
Indeed, business enterprises and transnational corporate actors operate in a complex global environment, especially when operating in high risks sectors such as oil and gas, mining, construction, banking, and health care amongst others. Understanding human rights responsibilities, impacts and socially responsible behaviour for states and companies is therefore an essential component of risk management in Africa. However, corporate induced human rights abuses have contributed to the most challenging human rights issues of the 21st century. One of the perplexing concerns of business and human rights debate is the human rights obligations of business enterprises to prevent, mitigate and address adverse impact of their activities. Often times, development projects, extractive activities, and manufacturing activities in Africa result in serious social, environmental, labour and human rights impacts. Not only have these projects caused land displacements, economic exclusion of the vulnerable members of the society, and large-scale environmental problems amongst others, they have increased local community resilience, and occasioned deep mistrust between host communities and development partners. In addition to minimising litigation, financial and reputational risks, understanding and demonstrating corporate respect for human rights is vital to building a culture of trust and integrity amongst local communities, investors, and shareholders.
What gaps did you notice that led to your new book: Implementing Business and Human Rights Norms in Africa: Law and Policy Interventions?
Existential gaps remain in the approach of corporate entities to human rights observance. In many African countries, while substantive rules that serve to regulate the activities and adverse impact of business do exist, they are not often considered to address business and human rights in a direct way. For instance, in the constitutions of many post-colonial states, state organs and businesses are understood to have obligations to abide by the Bill of Rights in the constitution. In countries which do not have obvious provisions for business compliance with human rights, legislation, regulations and policies have over time been adopted to address human rights, labour, public health and environment-related risks. In these ways, business activities are brought under the scrutiny of legal and policy regulations without being explicitly described as business and human rights regulations.
How has the situation been?
Over the last several decades, the African continent has been the epicentre of complex human rights, environmental and social impacts resulting from industrial activities, manufacturing processes, and resource production operations, particularly in extractive and fast moving consumer goods (FMCG) industries, for example, the adverse environmental impacts of oil and gas production in the Niger Delta area of Nigeria, the Lonmin massacre in South Africa, oil exploration and civil war in the DRC are clear examples of the failure of state actions and policy implementation. Large-scale environmental and social problems, such as climate change, water pollution, air pollution, loss of biodiversity, trade in endangered plant and animal species, gender-based exclusions, land grabs, and forced displacements, amongst others, resulting from resource exploitation and other industrial activities accentuate the need for greater corporate accountability for environmental and human rights impacts in Africa, especially when operating transnationally.
How does your book address these gaps?
These gaps highlight the need for home grown and localised approach to implementation approaches that consider local contexts across Africa and offer a form of ‘ubuntu’ internal systems for legal accountability and remedial redress, in line with emerging business and human rights norms. The book examines, clarifies, and unpacks the nature, scope and practical implications of emerging business and human rights norms in international law. It investigates the prospects and potentials of implementing business and human rights norms, in trade, investment, extractive, energy and diverse sectorial projects in developing countries, with perspectives from select African countries – Kenya, Nigeria and South Africa. Using the elements of the rights-based approach, it evaluates what international human rights standards currently regulate corporate conduct as opposed to the conduct of states and individuals, and to clarify the corresponding roles of states and businesses in safeguarding these rights. Business and human rights norms present a valuable roadmap for strengthening institutions to ensure that business activities in various sectors are not devoid of pertinent human rights considerations.
In Nigeria, members of the Academic Staff Union of Universities have been on strike for eight months. Does this amount to rights violation on the part of the students and parents, and are they entitled to any remedies?
Inadequate resources in the education sector promotes inequality, reduces the number and quality of schools as well as resources for learning. Nigerian government needs to invest substantially on education and instructional related materials. Most of the facilities in our Institutions of higher learning are moribund, and decrepit, creating a problematic environment for learning.
What should the government do?
The Nigerian government has failed over the years to consider higher education as critical to the economic survival of the country, hence, you see consistent brain drain over the years. Corruption and bureaucratic bottlenecks have also stifled the allocation of grants and funds to Universities in Nigeria. For example, the Tertiary Education Trust Fund (TETFUND) was designed to manage and monitor education tax to public institutions in Nigeria. The management of the fund has been marred with inadequate monitoring of research output, favoritism and nepotism. Investments in higher education will guarantee knowledge-based systems anchored on productivity, competition, and innovation. Businesses can assist in generating knowledge production. For example, oil and gas, telecommunications or financial institutions can institute professorial chairs to advance knowledge and practice in an area that is a priority for both the institution and such funding entity. This will galvanize less reliance on government to fund this critical sector and foster quality research output and production. Take the Nigerian Oil and Gas Local Content Development Act (2010) for example which requires international companies to promote education, transfer skills and technology, and research and development, and to meet the set minimum technology for training the indigenous companies on how to better participate in the oil and gas industry. Companies are better suited to meet the demands of educational sustenance, where there is a deliberate integration of social and environmental interests, and interactions with stakeholders.
The response is to have the state work with companies to build university capacities so institutions can benefit from the global market share in knowledge production and innovative research. Perhaps, we can begin to think around universities being run like corporate entities with sufficient and adequate generous endowments and the ultimate focus on cutting edge, innovative research focus.
Having taught abroad, are you bothered about the state of education in Nigeria, and what is the way out of the problem that seems to have defied solution?
Indeed, I am bothered about the state of education in Nigeria, as I believe everyone should irrespective of where we have worked or studies. As highlighted in 11 above, transparency in the education sector is critical. Employment of teachers must be based on competency and ability to deliver learning outcomes for students. More funding, periodic assessment of the impact such funds are making, and partnership with stakeholders to generate quality research products is critical.
A review of the courses being offered in universities to determine those that are relevant for the current global market and can produce societal impact is needed. It is also particularly important to adopt enquiry-based learning methods that will integrate practical skills and knowledge and prepare students to engage in real-world problem-solving. Goal 4 of the Sustainable Development Goals (SDGs) enjoins states to “Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all” Target 4.3 recommends that ‘by 2030, ensure equal access for all women and men to affordable and quality technical, vocational and tertiary education, including university’. Also, Target 4.7 indicates that ‘by 2030, ensure that all learners acquire the knowledge and skills needed to promote sustainable development, including, among others, through education for sustainable development and sustainable lifestyles, human rights, gender equality, promotion of a culture of peace and non-violence, global citizenship and appreciation of cultural diversity and of culture’s contribution to sustainable development.’ These aspirational goals emphasise the need for development institutions to support universities to develop collaborative research and teaching initiatives that will safeguard financial self-sufficiency.
Do you see yourself returning to teach law in Nigeria, for instance, and what would it take to bring back your likes who are excelling abroad?
Nigeria should make it a point of duty to invest in the education sector comparably with other developing economies – China for example. Institutions should also collaborate with other schools for share approach to learning. We should have students from other countries spending a semester or year in Nigeria for example and Nigerian students doing same in other countries. This widens students’ horizons and give them another perspective to understanding the necessary tools to excel in their chosen career. Sincerity of purpose to realise that our level of education is abysmal and genuine, concerted efforts to work towards maintaining standard are critical to have a shared approach to redeeming Nigeria’s educational sector. If you cast your mind back to what was the practice decades ago and where we are today, one will realise that turning the tide on the state of higher education in Nigeria is not rocket science.
Could you take us through a highlight of some of the needed regulatory and institutional capacities needed to address the problems/gaps?
First, there is the need for a holistic, sustainable, and effective body of laws that must carefully address the intersections of human rights with all key sectors, ranging from natural resources, land management, food, water, energy, education, aviation, and healthcare, amongst others. For example, there is the need to integrate human rights perspectives into the licensing and implementation of mining activities in order to effectively address the short- and long-term human rights impacts in local communities. It is also important to integrate human rights perspectives into economic policies to ensure that efforts to attract trade and foreign direct investment opportunities in key sectors do not result in lowering human rights standards. In Nigeria for instance, the Company Act does not provide for any corporate human rights observance. Furthermore, human rights approach and integration is critical in banking and security laws to address illicit financial flows that prevent Africa’s development and progress.
Second, Africa must essentially strengthen or enact strong, comprehensive, and legally enforceable business and human rights standards. While policy measures institutional guidelines are important, mainstreaming human rights standards into all aspects of governance and decision-making will require clear regulatory frameworks on business and human rights. In Africa, only six countries: Ghana, Kenya, Mozambique, South Africa, Uganda, and Zambia, have constitutional provisions that mandate business respect for human rights. In addition, most, if not all multinational companies (MNCs) have statements regarding compliance with human rights standards. Mere statements without more, does not guarantee human rights compliance. There must be an effective regulatory regime that provides sanction for violation of human rights standards. Codes of corporate conducts and policies of that nature are aspirational in nature; therefore, to actualise the policies contained therein, institutional, and functional structure must be put in place to achieve human rights compliance. One area where strong enforcement measures are critical is in due diligence commitments. Lack of due diligence has been the cause of local community-company remonstrations and distrust. Companies need to assess actual and potential human rights impacts in their spheres of operations. Where it is seen that they have violated human rights, they should remediate the damage or prevent any potential risk of adverse effects. Indeed, MNCs have the scientific and technological capability to conduct due diligence, but often times they decide not to. Unfortunately, the state is inherently indifferent to corporate capture and lacks the will to enforce its environmental laws against erring companies. For instance, under the Environmental Impact Assessment Act, Nigeria could embark upon criminalising the activities of companies that do not follow the due diligence mandates. Since it is expected that companies are subject to domestic laws, it is expected that this direction will pave the way for the indirect application of the human rights due diligence as contained in business and human rights principles.
A national law that mandates business enterprises to limit human rights risks in their operations and to integrate human rights due diligence into supply chain management can go a long way in advancing sustainable business practices. Under this model, human rights issues would not be considered in a reactionary manner or when there is a protest or disaster. Rather, actions to reduce human rights risks can become an integral part of, and harmonized with, overall national planning and development processes, as well as Sustainable Development Goals.
Third, providing and articulating clear institutional policy alignment is essential. African states must mandate the application of Free, Prior, Informed, Consent (FPIC) in any development project. Free demands that local communities are consulted without hinderance, and their inputs are incorporated in development projects and processes. These consultations must be held before projects are designed and contracts signed. Such consultations must be comprehensive, informative and give local communities all the needed information. Consent must not be coerced. Consultation obviates many challenges. It reduces tension with host communities, facilitates social legitimacy, builds community trust in development companies in the face of dwindling resources, and prioritises respect for ethical behaviour and local community initiatives
Development projects generate enormous human rights implications. The inherent problems are massive displacement without adequate consultation or compensation when making way for development projects, lack of participation, and inadequate or non-existent access to judicial remedies for victims of human rights violations. These instances are a stark reminder that corporate disasters represent state failure to address corporate impunity and failure to assume ‘duty’ in respect of respect human rights under national and international laws. While it is envisaged that integrating human rights protection into domestic laws and policies would be the panacea to these intractable challenges, a rights-based approach to resource governance would be a holistic framework that would safeguard future generations from corporate-related human rights abuses and climate disaster. Thus, States must guarantee that MNCs document the process for obtaining consent of the host communities and the right of host communities to withdraw consent where such development projects continue to cause insufferable conditions for workers, host communities and vulnerable members of the community. Adequate and timely information about a particular project must be given to the local communities. Consultation must be widely held with local communities and obtain their FPIC before trade or investments treaties are signed. Furthermore, adequate provisions should be made to protect the interests of vulnerable members of the public, including women, persons with disabilities, children, in trade agreements.
What is the role of human rights commissions in all of this?
Often times, national human rights commissions or state-owned enterprises have the primary responsibility for safeguarding human rights in a country, the process of investigating and addressing human rights risks involves a wide range of departments and units and can be very complicated across Africa. A coordinated and articulated institutional road map could unite different mandates and priorities across ministries and agencies. In Nigeria, for example, the Department of Petroleum Resources (DPR) is the regulatory agency for the enforcement of petroleum regulations in Nigeria. The Department does not have any programme or activity on business and human rights – and does not indicate whether the state has provided adequate mechanisms for information, training and support for key staff who shape business practices. Governments must ensure that institutions such as DPR are abreast of government’s human rights obligations (if any exist) – by providing sufficient information and training on human rights standards. The propensity of ethically complex projects to circumvent environmental and human rights assessments and examination makes it complicated and challenging to realize institutional consistency and coordination of efforts across ministries and agencies in the design and implementation of business and human rights responses.
Safeguarding business and human rights principles across sectoral agencies requires periodic and constant training in quality assessment and monitoring. Human rights education and training should be regularly conducted with corporate entities. To integrate a rights-based approach, implementation, and policy formulators must be trained and very well acquainted with the business and human rights principles, so that monitoring, and implementation are more effective. Periodic assessment and evaluation of staff should be carried out to assess their level of engagement with human rights and business principles. Ongoing staff development through various avenues such as summer school programmes, certificate courses, seminars and conferences would be essential.
Fourth, the rise of business law and practice across Africa raises the need for innovative business and human rights education programmes to train and prepare administrators for evidence-based policymaking on BHRs. Integrating human rights into business as a moral imperative, local community participation, consultation, and awareness – through citizenship education – will contribute to the implementation of the human rights standards in Africa’s development projects. However, certain steps must be implemented. Enhancing capacity for implementation will require education providers across Africa to design tailored courses that provide practical and skill-based learning using a wide range of online and in-class tools. Traditional human rights courses are not designed to explore the intricacies of BHR as a distinct and interdisciplinary field of study. This raises a huge gap in the capacity of African graduates and future policymakers to understand corporate responsibility and obligations relating to human rights. It is important for law schools to design innovative courses that fill this gap. Graduate schools should first introduce students to the historical context and theoretical concepts of corporate social responsibility, business and human rights. Courses should clearly recognize that the development of a National Baseline Assessment is instrumental to adopting national action plans on business and human rights. This form of enquiry-based learning should encourage a survey of business induced human rights violations, assess their key laws and regulations that guide the conduct of business to identify the extent to which they address human rights, their enforcement, institutional arrangements, gaps, and recommendations. Instruction led materials should identify and ensure students understand that Africa lags behind in the implementation of business and human rights, yet it is one of the continents that suffers tremendously from egregious conduct on non-state actors. There is a missing narrative on BHR in Africa. Consequently, development of national action plans on BHRs is critical. It is imperative for key institutions in Africa, such as African Development Bank, African Commission on Human and Peoples’ Rights, UNDP, to support such initiative.
Would you describe illicit financial flows, through which Africa loses billions, as a form of abuse of human rights by transnational corporations and their enablers/facilitators?
Indeed, IFFs are gross violations of citizens fundamental rights. The AU Convention on Preventing and Combatting Corruption recognizes illicit financial flows as a related offence to corruption under article 6 and thus require States to act against ‘the conversion, transfer or disposal’ of proceeds from corruption. In the last five decades, Africa has lost over 1 trillion dollars to illicit financial flows. Yearly, it is estimated that the continent loses more than 50 billion dollars from these flows, 65 per cent of which relates to commercial activities by corporations.
The weak legal and regulatory architecture of most African states are readily exploited by non-state actors. Three key manifestations of these flows in commercial activities are: tax avoidance and evasion, concealment of fortune and sidestepping of local levies and custom duties. On taxes, Africa loses over 38 billion to evasions. In Tanzania, $18.73 billion was lost between 2002 and 2011 due to mis-invoicing. In Liberia, corporations in the forestry sector owe an estimated $25 million dollars from taxes evaded in some cases over a period of eight years. Following the Marikana massacre in South Africa, investigations into the activities of Lonmin revealed that the world’s third largest platinum corporation moved an annual profit of ZAR400 million from South Africa to Bermuda to evade taxes for almost two decades. These illicit flows essentially deprive the continent of pertinent resources for socio-economic development. However, the UNECA High Level Panel Report noted that while corruption impedes Africa’s development, the continent loses more money through illicit financial flows than it receives in aid, loans and investment combined.
Due to weak legal and regulatory architecture, businesses exploit the gaps and weakness in the law to channel their resources illegally. Lost funds can be utilized to provide social and economic benefits which will significantly benefit citizens. Expanding understanding of material risk as including not only risk to the company, but also risk to key stakeholders and their rights (double materiality) is a crucial step towards making human rights a key factor in investment decision-making processes. The highest noticeable significance of illicit financial flows is evident on the lack of implementation of the rights to equality, health, education, and work in Africa. More hospitals could have been constructed, with provision of lifesaving treatments, provision of adequate schools and educational resources. These impacts the number of children that could have received free education and the impact on employment conditions such as wages and living standards, non-implementation of these rights further deepens inequality.
IFFs weaken the state, structures of government and other institutions such as financial intelligence units, legal regulatory systems, banks, and financial regulatory institutions. Beneficiaries of IFFs undermine those institutions that are responsible for detecting and prosecuting illicit conduct. Through bribery, corruption and public theft beneficiaries of illicit financial flows also discredit democratic institutions.
In Marikana, the miners were not only striking about their own low wages but also against the extremely high salaries paid to the mine’s management. The main way in which illicit financial flows impacts on socio-economic rights is by reducing the available funding at the disposal of the state to promote access for its people to the necessary resources to realise these rights. One of the major components of poverty eradication policies is increase in access to health care. Illicit financial flows reduce the state revenue and impacts directly upon the number of hospitals available to treat poor and vulnerable groups, the quality of the facilities, the number of patients that could have received life-saving medication, the number of doctors that could have been trained and employed and, it directly impacts upon whether a person dies with dignity or in misery.
IFF impacts revenue generating capacity of state. For example, tax abuse by MNCs force governments to raise revenue from other sources such as Value Added Tax (VAT). Thus, states should strengthen their capacity to address illicit financial flows; Investigate and take action to repatriate funds in relation to individuals and corporations mentioned in investigative documents such as the Panama Papers. Businesses should also undertake due diligence and human rights impact assessments which include tax compliance impacts and mitigation strategies.
Do you think African governments are doing enough to hold these violators accountable, and what more is needed?
States are not doing enough to meet their duty to protect against business-related human rights abuse. The efficacy of current legal developments is being called into question. Governance gaps, policy incoherence and lack of government leadership remains a challenge to ensuring business and human rights compliance.
The level of compliance by business enterprises and enforcement of applicable laws have often been very low, where enforcement by national authorities is weak. African countries will need to carefully consider complex socio-economic conditions in their countries and develop detailed and responsive legal frameworks that provide effective avenues for anticipating and addressing human rights violations in key sectors. Greater clarity must be placed on legislative efficacy and corporate accountability. Responsible investment in natural resources, land and other sectors, and ways to overcome governance gaps and advance business and human rights principles must be well laid out in legislative processes and documents.
States must also play a crucial role in driving cross cutting and strategic considerations for multi-stakeholder dialogue and carving out a common vision for the way forward for responsible investments in these sectors. Furthermore, to effectively hold violators accountable, States must be able to track performance and progress in the implementation of these Principles – examining the wide range of existing initiatives and methodologies – from measuring, tracking, and reporting to ranking and benchmarking. Furthermore, States may need to address the human rights impacts of corruption by business actors, when deciding whether to provide a business with government support such as trade finance or the award of a concession. Similarly, there may be areas of policy reform that will promote stronger respect for human rights as well as prevent corruption. For example, reform of public procurement processes may benefit rights holders as well as preventing corrupt bidding.
How best do you think Africa can address the corporate impunity and rights violations by state and non-state actors?
Stronger and effective laws are critical to safeguarding business respect for human rights. The scale of injustice, gravity of the offences and impact of the crimes on individuals and communities demand that a clear system of judicial recourse be established for matters of corporate criminal liability in Africa.
The inventiveness of the African Union (AU) to amend the Protocol on the Statute of the African Court of Justice and Human Rights that initially merged the African Court of Human and People’s Rights with the African Court of Justice has been received with mixed feelings. The Protocol on the Statute of the African Court of Justice and Human Rights (otherwise referred to as the “Malabo Protocol’), if duly ratified would expand the jurisdiction of the African Court of Justice and Human Rights, and consequently establish the first regional criminal court in the world to adjudicate cases of corporate criminal responsibility, and illicit exploitation of natural resources, amongst other quotidian international crimes. There are some arguments whether to incorporate so many of such crimes, which are not provided under the jurisdiction of the International Criminal Court. The criminal jurisdiction of the court would be unique. Apart from the crimes of genocide, crimes against humanity, war crimes and aggression which exists under the International Criminal Court, the African Courts’ jurisdiction has been expanded to include corporate crimes. That the African continent is taking this pivotal step towards corporate criminal liability is not surprising. Achieving extractive resource management has been monumental challenge for African countries. From Nigeria (Ogoni) to the DRC (Katanga province), Angola, South Africa (Marikana), though states are complicit, MNCs are often agents of various human rights abuse in resource rich, conflict ridden, institutionally weak zones of the African continent.
Recall that since the enactment of the Rome Statute, there has been a raging debate on expanding the jurisdiction of the International Criminal Court to include corporations, or a regional criminal court in the first place. The largely non-ratification of the Malabo Protocol by AU member states is largely due to a number of factors – adequate legal resources, political will, domestic legal and enforcement mechanisms. Consequently, African states should consider seriously the ramifications, importance and adaptions of international treaties to local context before ratifying same. Much more depends on domestic prosecution of international crimes. The jurisdiction over such crimes as indicated under the Protocol are Utopian. However, there are crimes which occur on a more rampant scale such as piracy, trafficking of women and children, dumping of hazardous wastes, which affect Africa more rapidly than such crimes as war crimes, genocide.
The judicial system should also be strengthened. There are systemic shortcomings in existing efforts at addressing access to remedies within the business and human rights debate. Access to remedies, from State-based judicial and non-judicial mechanisms to non-State-based remediation and grievance mechanisms involving companies, industry bodies, multi-stakeholder initiatives and regional and international institutions are pivotal. The multi-stakeholder initiative is essential in guaranteeing that all voices are heard, new ideas are implemented in other to address existing gaps and their root causes. These dialogues must be action oriented and include key stakeholders such as victims, MNCs, NGOs, NHRIs geared towards eliciting solid assurances from decision makers.
Access to remedies is a fundamental component of the business and human rights debate. Not only must victims of corporate induced human rights violations have access to effective remedial mechanism, but businesses must also integrate access as part of their due diligence process. Efficient judicial mechanisms are central to the question of access to remedy. For instance, corporate internal (and external) grievance mechanisms offer a veritable source for complaints to be immediately addressed before there is breakdown of relationship between companies and their host communities. These grievance mechanisms will be an avenue to get feedback about their activities. Some countries mandate businesses to contribute to an environment restoration fund before the commencement of any project, to safeguard any corporate obligations towards the host community or other unforeseen events, including human rights impact. The failure of corporate actors to comply with environmental laws and restoration efforts complicates access to remedy. Thus, states are enjoined to ensure strict compliance and punitive actions against businesses that refuse, fail and neglect to contribute to ecological reintegration and rehabilitation requirements. These obligations must include mandating businesses to set aside some financial tools, such as host community development trust fund, or some form of corporate guarantee before the commencement of the project. The next section discusses practical issues and gaps that must be addressed to guarantee an effective judicial and non-judicial grievance mechanism.
There are increasing calls for States and business to step up action, including for States to negotiate a legally binding instrument. Amid the constantly changing landscape of global governance challenges, it is critical to identify the most effective ways for ensuring alignment, adherence and accountability.
How would you describe corporate culture on the continent, especially regarding implementation of socially responsible norms?
While there have been some commitments to the business and human rights agenda in Africa, there remains some gaps in policy and institutional alignments as well as the implementation of business and human rights principles. For example, the African Commission’s Working Group on Extractives Industries, Environment and Human Rights Violations, developed a State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter relating to Extractive Industries, Human Rights and the Environment, and a Resolution on the Niamey Declaration on Ensuring the Upholding of the African Charter in the Extractive Industries Sector, which urges State Parties to adopt laws and regulations aimed at easing economic hardships of communities affected by extractive activities in line with regional and international human rights laws and principles. The African Commission also adopted the Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and People’s Rights on 26 May 2010. The Guidelines provides a more detailed explanation of State Parties’ obligations under the African Charter. The Tunis Reporting Guidelines were adopted to give further guidelines to State Parties to the African Charter in reporting on implementation of their obligations to the realisation and enjoyment of social, economic and cultural rights under the Charter.
AU organs, especially the African Commission, have a strong history of adopting thematic and country specific resolutions and general comments on specific provisions of the Africa Charter which provide normative content and clarity to state parties on their human rights obligations.
Despite these legal innovations, corporate entities still continue to operate with impunity. Recently, NNPC and security agencies discovered illegal refineries that has been operating in Nigeria for the past 9 years, which has reduced the output and production capacity of the country. In a 2015 corruption survey on Africa by Transparency International, business executives were considered second most corrupt after the police. The corruption prevalence on the continent has a huge impact not only on economic growth but also on sustainable development and the realization of human rights. One of the ways in which the link between business-related corruption and human rights resonates in Africa is with secret deals in the extractive industries. In 2000, more than 13 million dollars was transferred by Marathon Oil to the Angolan-state owned Sonangol. The payment was ‘one-third of the bonus’ agreed for oil exploration rights in Angola’s offshore reserves. In subsequent months, the funds moved into organizations owned by Angolan government officials. In the Democratic Republic of Congo, at least USD1.36 billion (which accounts for twice the national budget for health and education) was lost in secret deals between businesses and government officials between 2010 and 2012.
Bribery scandals in Guinea involving the erstwhile government and MNCs over the ore rich Simandou region has shelved ore exploratory activities that have the potential of creating socio-economic development in the poor country. Between 1999 and 2002, the Greater Nile Petroleum Operating Company – a consortium of oil corporations including Canadian-based Talisman – engaged in violent attacks against civilians in Sudan with the aid of the military. While villages in the eastern part of Heglig were destroyed by army officials, attacks were launched against the Ruweng County in the Western Upper Nile, leaving over 6000 houses burnt. According to a 2002 Report by the UN Special Rapporteur on the situation of human rights in Sudan, there were accounts of “scorched earth tactics used by air and ground forces to clear oil-rich areas, chase people out of their villages and ensure that they would not return.” Royalties from the up-stream oil activities by the company was used to exacerbate the conflict in the Heglig region.
In Angola, the 27-year civil war was significantly exacerbated by extractive companies. In the oil sector, the state owned Sonangol corporation established in 1978 as the “exclusive concessionaire for oil exploration and development,” gave equity interests to businesses with links to the global arms trade as a form of payment for brokering arms deal. One of the key actors in the conflict was the French Elf Aquitaine. Between 1990 and 1994, Elf Aquitaine arranged oil-backed loans both for government forces and the opposition in the Angolan civil war. The actions of Elf at the time derived from the belief of corporations in the extractive industries that it was “easy to make money on the war by offering loans to the respective guerrilla leaders – at exorbitant interest rates – in exchange for promises of oil contracts.” Beyond Angola, Elf-Aquitaine also provided financial support to the Sassou-led government in the 1997 civil war in exchange for “future rights to exploit Congo’s substantial oil reserves.”
The Niger-Delta situation in Nigeria spotlights the issue of environmental pollution. In its 2021 report, the World Bank identified Nigeria as one of the top seven gas flaring countries for almost a decade. Market and economic constrictions as well as lack of regulatory clarity complicates the importance of ending gas flaring in Nigeria. The result is a brazen pollution of the atmosphere, including carbon dioxide, methane and black carbon. Gas flaring has not only created negative changes of atmospheric conditions, but it has also reduced the life expectancy in the Niger Delta region.
Displacement due to business-related development projects is one of the pertinent human rights challenges in Africa. Following independence, many African states embarked on large-scale development projects to economically position Africa with the rest of the world. Large-scale investment projects from businesses were significantly encouraged particularly in the extractive sector. And while the economic benefits of these projects have been tremendous, the way displacements are often carried out for their realization have had an immense impact on the socio-economic livelihood of those displaced. Issues of cosmetic consultation, inadequate notices, unfair and unjust compensations have often raised pertinent human rights questions.
In the Tete province situation in Mozambique, there was resettlement following the displacement of more than 2000 families from 2009 to 2014 for coal mining activities by Vale and Rio Tinto. However, the resettlement process implemented by the companies was fraught. One pertinent problem with the resettlement was that arable land was not sufficient for food production. Families moved to Cateme village were assured two hectares of land for agriculture, however, only one hectare which was noted to be unproductive was given. There were also discriminatory patterns in the way families were moved. For instance, families moved by Vale to 25 de Setembro were employed at the mines and as such close to the mines and to the urban settlement. Whereas families moved to Cateme village were 40 kilometres away from the urban capital and as such experienced challenges getting jobs.
Some companies have begun to incorporate best practices in their modes of operations. From providing on-site accommodation to full-time workers and temporary accommodation to seasonal workers, to ease the burden on care givers and parents with children, to providing in-house operational level grievance mechanisms.
What basic socially responsible behaviours are expected of companies?
It is important to note that most companies are mistaken that providing socially responsible projects, such as roads, water, schools, grant them some form of social legitimacy and social license to operate. While corporate social responsibility is critical to the social standing of a company, there are socially responsible behaviours companies must imbibe to have the social license to operate.
First, companies must conduct human rights due diligence to identify, prevent, mitigate and account for how they address their impacts on human rights. Mere statement of policies will not suffice, rather, businesses must have a well laid out and clear-cut processes for assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed. The human rights due diligence must account for adverse human rights impacts caused by the business entity itself or activities directly related to such business operations, products, or services. This should not be a one-off process but an ongoing process considering that human rights risks may continuously change as the business operations evolve. Thus, assessments of human rights impacts should be undertaken at regular intervals: prior to a new activity or relationship; prior to major decisions or changes in the operation (e.g., market entry, product launch, policy change, or wider changes to the business); in response to or anticipation of changes in the operating environment (e.g. rising social tensions). Adoption of due diligence requirements will facilitate the implementation of a FPIC process. For example, businesses must evaluate or review their internal mechanisms to ensure that a prospective investment or project adheres to sustainable business practices and human rights standards.
Second, corporate activity directly impacts human rights when it fails to anticipate, mitigate and redress all sources of human rights violations, especially the right to environment, health, and livelihoods of indigenous peoples, local communities, and people in vulnerable situations. Hence, companies must conduct human rights impact assessments. HRIA can help businesses foresee, comprehend, and prevent adverse human rights impacts. In conducting HRIA, businesses will scope local content policies, laws, programmes to recognize and gauge the effect of their activities on human rights. A combination of corporate due diligence and HRIA, critical elements of a rights-based approach, will enable companies to identify possible impact of their projects on human rights, and determine whether to proceed on the project.
Third, a rights-based approach to business practices is critical to safeguarding socially responsible behaviour. A rights-based approach is anchored on participation, accountability, non-discrimination, access to information and transparency. Timely and adequate information on development projects must be provided to the affected local community. The adequacy of the contribution to such projects must be measured under a reasonable person’s test. Local communities must take part in and be able to influence decisions that affect them – especially considering that most members of this community, typically being illiterate, may not be able to understand the technicalities of contractual language. For local communities to participate in extractive governance, corporate management will have to integrate members of the community into decision-making. This participation should be sought in a transparent and consultative manner, while stakeholders should be able to express their views fairly and fearlessly. Host communities are the most impacted by the harmful activities of MNCs. Involving the stakeholders legitimises the project to be carried out in their community and also creates social license for the firms. The mere fact that the host community has been given the necessary advantage of participating in decision-making, should not be an avenue used to delay development projects. The aim of broad-based participation is to avoid unnecessary hurdles and the politicisation of the entire process. The community should not see it as an avenue to impede development. The objective should be a transparent solution which is anchored on a solid based, pragmatic approach. For example, the South African silicosis cases reveals the inability of mines to provide an adequate and enabling environment for the mineworkers to work and to be informed of the impact of the project on their land and health.
Accountability occurs where businesses experiences consequences for their negative performance or actions. Accountability is essential for businesses and for society. Businesses must be able to establish that a project has been developed in agreement with human rights rules and standards. Transparency on the other hand connotes openness, and candid communication with the local community on all aspects of the investment project or activity.
Measuring human rights observance provides a clear and precise indication of progress made, when previously it had been lacking. Rules and safeguards help to prevent human rights violations. Transparency and accountability are at the core of development projects in Africa. A transparent and accountable business practice which is consistent with human rights, will measure the impact of laws and policies on human rights compliance. For example, all environmental laws must provide for compliance mechanisms that monitor the actualisation of human rights. Absence of transparency and accountability has led to concerns about the role of states, development partners, especially, International Financial Institutions, to implement strong and mandatory human rights standards that must be met before projects are funded. For example, despite Nigeria’s plethora of laws regulating the resource industry, there has been weak implementation of those laws. Besides, these laws do not provide for adequate monitoring, and do not insist on human rights compliance information. This laxity fails to hold MNCs accountable for human rights violations in the extractive industry.
Corporate reporting is a fundamental tool in safeguarding accountability and effective communication. Most developmental projects are shrouded in so much secrecy that host communities remonstrate against such potentially projects. Local communities are entitled to certain key and basic information on how a project will benefit and affect them. They can, however, only make this informed decision if they are part of the decision-making process. Corporate reporting must include all the necessary details (and those not even considered necessary) of a project.
Although the accuracy or honesty in such a report by corporate entities remains debatable – the utility in reporting shows transparency and accountability. The question though, is what constitutes adequate information?
The adequacy of information must be assessed by reference to the amount of information publicly available, disclosure of new information, and also the ease of access to that information. The nature of the project also determines the adequacy of that information. In Nigeria, the Freedom of Information Act seems to provide an avenue for local communities to seek information on resource extraction projects in their communities. The operation of this Act has however been hindered by the reluctance of government to grant requests made by people.
