Implementing Business and Human Rights Norms in Africa: Law and Policy Interventions

Oyeniyi Abe

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000588217
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book examines the contemporary and contentious question of the critical connections between business and human rights, and the implementation of socially responsible norms in developing countries, with particular reference to Kenya, Nigeria, and South Africa. 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 companies is therefore an essential component of corporate risk management in our current world. The release of the United Nations Guiding Principles on Business and Human Rights, an instrument consisting of 31 principles on this issue, has further underscored the emergence of a rapidly developing set of international law norms on human rights responsibilities of businesses and transnational corporations. It has also shaped the discourse on corporate accountability for human rights. In addition to minimizing 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. While Africa has been at the receiving end of deleterious activities of corporate actors, it has failed to address corporate impunity and human rights violations by non-state actors. Questions abound revolving around the underpinnings of a corporate responsibility to respect human rights, that is, how non-western and particularly African conceptions of respect may help develop a beyond do no net harm approach to respect; policy discourses on human rights due diligence, human rights impact assessment; mandating corporate respect for human rights in both domestic and international law.

This book examines, clarifies, and unpacks the guiding principles of a rights-based approach to development and social inclusion. It offers an excellent exposition of regulatory capacity, institutional efficacy, and democratic legitimacy of governance institutions that shape development including a comprehensive analysis of how states are shaping business and human rights discourses locally to develop a critical understanding of identified issues by exploring the latest theories through comparative lenses.

Part I Introductory context and principles

1 Introduction

DOI: 10.4324/9781003290124-3

1.1 Background

This book examines the potential and challenges associated with adopting business and human rights principles as a legal and institutional framework for addressing human rights questions in development projects in Africa, using Nigeria, South Africa, and Kenya as key focal countries. The book provides an overview of the body of legislation, regulatory framework, guiding principles, institutional arrangements, and industry guidelines that govern developmental projects such as oil, gas, and solid minerals in Africa.

On 16 June 2011, the United Nations Human Rights Council, unanimously endorsed the United Nations Guiding Principles on Business and Human Rights (UNGPs).¹ The UNGPs rest on three pillars: the State duty to protect against human rights violations; the corporate responsibility to respect human rights in their operations; and greater access by victims to effective remedy, both judicial and non-judicial, for human rights violations. The UNGPs thus becomes instructive as a rights-based approach to safeguarding governance challenges in Africa. The book adopts the UNGPs as a Human Rights Based Approach (HRBA) in providing a multijurisdictional and general assessment of the legal and institutional framework designed to manage developmental projects across the focal countries. It further discusses the importance of integrating human rights protection into extant relevant laws and considers how human rights protection can be effectively implanted into domestic laws, regulations, and corporate practices. In so doing, it examines the practicality of implementing business and human rights principles through adaptation of legal and practical structures. Anchored on the HRBA, the book investigates how key developments and strategies have adopted and integrated human rights norms into corporate practice.² The objective is to ensure that the implementation of business and human rights (BHRs) principles will ensure positive extractive resource governance, while at the same time guaranteeing that state and corporate actors are held liable for breaching their human rights obligations. The effect will be to create a synergy between key stakeholders in the extractive resource industry: state, corporations, and local communities.

The book offers a fundamental paradigm change in approach to existing literature that has precluded African scholarship.³ It focusses on efforts to expand the regulatory capacity, institutional efficacy, and democratic legitimacy of governance institutions that shape development. While existing literature have grappled with the ways in which power, interests, and characteristics of political systems shape how development projects are developed, the impacts of governance interventions, and the ultimate outcomes of both, the goal of this book is to develop a critical understanding of BHR principles and the challenges of economic transformation through social change.

Section 1.2 of this chapter provides the background to the issues identified. It highlights the vital challenges that necessitates vigorous legal solutions in Africa’s developmental paradigms, most especially legal challenges relating to business, human rights, and the extractive industry. While the developed nations have done well, developing nations – mainly Sub-Saharan African countries – are still struggling to find a way of securing the desired dividends of developmental projects.⁴ Ranging from civil wars arising in diamond conflicts to environmental degradation to mineral exploitation, the stories are of woe, conflict, and further impoverishment for the indigenes of resource rich communities.⁵ Harnessing the benefits of resource extraction has become so problematic, that the challenges far outweigh the desired results. Not only has this led to the impoverishment of African citizens, but it has exacerbated wars and ethnic conflicts. The activities of multinational companies (MNCs) are rarely felt in a positive way;⁶ the state cares little about improving lives in local communities.⁷ These teething problems, which are unique to developing countries,⁸ foreground the need for a more comprehensive understanding of shared communal responsibility within a local context. With this approach, companies, local communities, and the state will have a common and shared responsibility to co-exist with one another.⁹

This chapter begins with a contextual analysis of the earliest attempts to regulate corporate activities in key sectors of the economy, and how those attempts have failed. It further examines the importance of the proactive implementation of business and human rights principles in the economies of focal economies. Thereafter, it reveals how these challenges can create a “smart mix” approach:¹⁰ where soft-law instruments will, over time, metamorphose into legally binding instruments – thereby creating cross-cutting synergies between business, human rights, and policy measures.

1.2 Business and human rights in Africa: legal context, challenges, and overview

The energy, extractives, financial, and telecommunications industries have mostly been the strength of African economies.¹¹ For a number of African countries, oil and gas has constituted part of their gross domestic product (GDP). For instance, oil has been Nigeria’s main revenue earning sector. Yet, Nigerians continue to suffer untold hardships arising from activities involving corporate related human rights violations. The 2011 United Nations Environment Programme (UNEP) Report,¹² revealed that the activities of Shell and other oil companies have systematically contaminated the vast majority of Ogoniland. These have serious consequences for human life and well-being. The extent of environmental degradation as evidenced in the Report can be summarized as follows: large-scale evidence of contamination of land and underground water courses, high levels of harmful substances and pollutants, such as benzene, found in community drinking water, residues of harmful substances still found on sites claimed to have been cleaned by the oil companies, failure of the oil companies to operate according to Nigerian standards or any recognized global standard.¹³ No doubt, oil exploration in Ogoniland has resulted in severe environmental degradation, oil pollution and grave injustices to the people of Ogoniland.¹⁴ The Report further states that it will require $1 billion for the first five years and between 25 to 30 years to complete any environmental restoration in Ogoniland, once ongoing pollution is stopped.¹⁵ The various human rights violations evident in this Report shows a long overdue restoration of host communities to Nigeria’s extractive projects.¹⁶

Resource governance has been a challenging task in Africa. Flagrant pollution of the air and environment has continued without abatement. Multinational organ-isations (MNCs) are more concerned with the benefits derived from exploration rather than the impact of their activities on the immediate environment. The idea of wealth maximization at the detriment of sustainable development seems to be the companies’ guiding principles. African societies are increasingly concerned that the rise of MNCs in wealth and influence has not seen a commensurate rise in addressing human rights concerns, poverty, unequal treatment of workers, environmental damage, and pollution.¹⁷ This book, therefore, considers the corporate irresponsibility that has pervaded Africa’s developmental landscape and human rights concerns associated with corporate practice.

Observing human rights principles in business continues to be one of the greatest challenges facing the current generation. Over the years, concern over human rights violations by businesses has increased exponentially. Indeed, “human rights are not so much an inheritance to preserve as an intervention to make”.¹⁸ Yet, the concept of human rights is both simple and powerful. The simplicity and power of human rights lies in the idea that every person is endowed with inherent dignity, and has equal and inalienable rights.¹⁹ Traditionally, human rights were conceived and “designed as a set of rules” and practices to defend citizens from the excessive powers of the state. As a result, states are obliged to ensure that their citizens live a life of dignity. Several human rights instruments have been enacted since 1948 to protect the inviolability of human lives.²⁰ These mechanisms, collectively referred to as the International Bill of Rights, did not however specifically provide for corporate-related human rights abuses. The idea that “business enterprises must have human rights responsibilities backed by legal requirements in their spheres of operation, is relatively new and is still not universally accepted.”²¹ Much has been said about states adopting policy measures aimed at responsible natural resource extraction, but the tendency has been to describe the problem rather than profer solutions.²²

There have been various attempts since the 1960s to regulate the activities of corporate actors and their impact on human rights. The United Nations (UN), through several treaties and conventions, has continued to urge MNCs to observe minimum, basic, human rights protection in their activities. The disparities in the response to these instruments is evident in the attitude of the MNCs which adhere to the basic protection of human rights in developed countries – but which turn a blind eye to such protection in developing countries. The countries of the Global North have shaped corporate behavior through legal and institutional frameworks. Their legal systems enhance corporate responsibility by mandating parallel checks on authorities and offering a medium for vertical claims by citizens. In the African continent, perceptions on the discourses surrounding business and human rights have been lacking, despite the adverse impact of non-state actors and human rights violations on the continent. African states need to reinforce and strengthen their courts (including prosecutors and police); oversight institutions (ombudsmen, anti-corruption agencies, and human rights commissions). Not only should these institutions be more accessible to the people, but they must also be effective in handling complaints and grievance mechanisms. While the Global North appears to have strengthened their oversight over corporate entities, Africa, where the effect of corporate activities is felt is still lacking behind. While the Guiding Principles are a normative construct, African institutions must begin to create innovative pathways to framing claims, employ necessary rhetorics, to hold non-state actors accountable under international law.²³ Perhaps, the lack of a binding business and human...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgements
• List of abbreviations
• Introduction
• Part I Introductory context and principles
• Part II Human rights-based approach to business and human rights in Africa
• Part III Implementing the protect, respect, remedy framework in Africa’s energy and extractive sectors
• Index