States must seize the opportunity the Guiding Principles offer them to bolster their legislation
Emmanuel Umpula Nkumba is the Executive Director of AFREWATCH, an NGO from the Democratic Republic of the Congo established in December 2013 and working for just and equitable harnessing of natural resources in Africa by holding the companies and States there accountable.
What are the main legal remedies or tools available to you in seeking to hold companies accountable for human rights abuses? What are the biggest gaps?
In the Democratic Republic of the Congo, we have domestic legislation, particularly the Constitution and the Mining Code and its enforcement measures. The country has also ratified various regional and international conventions such as the African Charter on Human and People’s Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
There are two types of legal remedy: ordinary and extraordinary.
Ordinary remedy includes national courts and tribunals. However, the legal system in the country is generally dysfunctional. Access to justice is difficult for several reasons. Firstly, victims are unaware of their rights therefore making it difficult for them to stake a claim for these rights. Secondly, judges do not consider the Mining Code to be a tool of which they can avail themselves, and they are ignorant of issues relating to natural resources. Finally, free legal assistance does not function properly, legal proceedings are exceedingly drawn out, and the enormous legal fees generated are also problematic.
There is also extraordinary recourse that can be made to the African Commission of Human and People’s Rights, just as one example. However, the Commission’s resolutions are not binding for States. One must have exhausted all domestic remedies in order to resort to this mechanism, and it takes time, about a year, for it to issue a recommendation. It is also onerous for the victims.
As far as the OECD national contact points, the same criticism holds as for the African Commission for Human and People’s Rights. Although one need not exhaust all of the domestic legal remedies, the outcome is a recommendation, which is pretty weak in terms of arriving at a satisfactory result for the victims.
There are also recourse mechanisms to the World Bank, though there one must have ascertained that there was a Bank investment made. The cost of accessing this mechanism remains a problem and the results are often not satisfying.
Insofar as internal company complaint mechanisms are concerned, they vary from one company to another, but in the cases we have dealt with, the victims have not been heard and have not been successful in their cases.
Voluntary principles such as the United Nations Guiding Principles on Business and Human Rights (Guiding Principles) and the Equator Principles have their limitations because they are not binding and do not make mention of all of the human rights documents.
We have faith and use these mechanisms to carry forward our struggle for an internationally binding treaty. But in countries with weak governance, the State must have competent legal mechanisms.
What challenges (legal or practical) do you face in seeking to hold companies legally accountable in the Democratic Republic of the Congo? Do you think there has been any progress in this area in your country?
In many cases there are conflicts of interest. The national authorities hold shares in the companies or play a protective role in exchange for a personal interest they have in these companies.
Access to information proves difficult. There is no clearly established law obliging companies to disseminate information.
As an NGO, access to justice against a company that has abused human rights is difficult. As things stand, the NGO cannot intervene in judicial proceedings because it does not have an interest and is not a party in the case. Nevertheless, progress can be seen in the forestry sector. The current law recognizes NGOs as being able to take flagrant abuses of the rights of communities to court. We hope that the Mining Code, which is currently under revision, will take this progress into account.
Even the victims that live in communities around a company doing business cannot take their case to court because they have no legal standing. Class actions are not possible. In the cases we have worked on, we have filed suit on the part of the single, individual victims.
Legal costs are borne by those taking their case to court. The State does not provide enough funding to the courts for them to function, and it is therefore the person seeking justice that must defray the cost. Corruption and the law of the strongest prevent the poor from accessing justice.
The State can implement reforms to improve things. The laws go back to colonial times and are not adapted to the current situation and needs of society and the problems we have. It is important for there to be a binding instrument and for the various regional and international initiatives to be harmonised. Otherwise, companies will simply go to another country that does not hold them accountable for human rights abuses.
The increase in legal costs must be addressed through domestic legislation if the State is to make justice a priority.
What encourages us to continue is that we can now discuss issues of Business and Human Rights, and this was not the case several years ago.
What are consequences or repercussions have you encountered as a result of your advocacy for human rights?
There is no lack of threats: intimidation, attacks on one’s physical integrity, arrests. I have been threatened more than once. In order to reduce the risks, it’s important to work to defend human rights professionals, but also to work in networks with national or international partners.
As a human rights defence NGO, we also face the threat of a lack of funding for our work.
The lack of financial resources to successfully tackle the cases we work for and to do capacity building is a true handicap.
Do you ever collaborate with lawyers from other countries? If so, how?
We meet them in national and international fora.
We have not yet developed possibilities for working together, but that is related to the limited means at our disposal in terms of communication (telephone, internet), and of infrastructure in general.
In the future, we hope to work with foreign colleagues to exchange experiences and learn from each other.
What can the international community do to help?
The international community does help via the United Nations, however that help is not enough.
The Guiding Principles have stirred debate. They must be improved and a working group to discuss how to bolster them is a good start.
Often, there is no respect for human rights because companies are more powerful than States. People who reach power are there because of multinationals and are obliged to them. Those who try to oppose these practices are chased away from government. Even if we have national and international laws to protect human rights, the issue of democracy has to be tackled. Human rights continue to be abused because those in power, in Africa generally speaking, have nothing to do with common people. Economic interests prevail over other interests. Certain Western States must understand that political change in a democracy bolsters rather than destabilises.
What would be your main message to the business community regarding accountability for human rights abuses?
We demand that companies respect human rights in countries where the State is weak.
When a company abuses human rights, we demand reparations for the victims for damages rather than getting into lengthy legal procedures, and that is less expensive for them. That is the spirit of the Guiding Principles.
States must seize the opportunity this offers them to bolster their legislation. A balance between human rights and profit is essential.