abusesaffiliationarrow-downarrow-leftarrow-rightarrow-upattack-typeburgerchevron-downchevron-leftchevron-rightchevron-upClock iconclosedeletedevelopment-povertydiscriminationdollardownloademailenvironmentexternal-linkfacebookfiltergenderglobegroupshealthC4067174-3DD9-4B9E-AD64-284FDAAE6338@1xinformation-outlineinformationinstagraminvestment-trade-globalisationissueslabourlanguagesShapeCombined Shapeline, chart, up, arrow, graphlocationmap-pinminusnewsorganisationotheroverviewpluspreviewArtboard 185profilerefreshIconnewssearchsecurityPathStock downStock steadyStock uptagticktooltiptwitteruniversalityweb

The content is also available in the following languages: français

Opinion

16 Jul 2015

Author:
Foromo Frederic Loua, Les Mêmes Droits pour Tous (Guinea)

Our legal actions tell companies they cannot abuse the rights of communities and remain unpunished

See all tags

Business & Human Rights Resource Centre

Disponible en français

Mr Foromo Frederic Loua is a Guinean lawyer.  In 2014, he founded the NGO Les Mêmes Droits pour Tous (Equal Rights for All), which defends and promotes human rights in Guinea.  The NGO offers legal assistance to those who are vulnerable, particularly to victims of torture and human rights abuses perpetrated by companies.

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?

The first tool we have at our disposal is the law.  We have positive law in Guinea but also international conventions to which Guinea is party.

Secondly we have administrative remedy that often does not have any results.  In fact, when we find that a company is acting in a way involving repeated human rights abuses, we turn to the government service responsible in order to draw its attention to the fact so that it takes corrective measures.  For instance we take cases to certain ministries.

To cite an example, when the company Société Guinéenne de Palmier à Huile et d'Hévéa (SOGUIPAH) took over a parcel of land belonging to the Community of the Village of Saoro, we wrote to the Ministry of Agriculture, under whose remit SOGUIPAH falls, in order to denounce this illegal land grabbing and call for an immediate stop to be put to these human rights abuses.

This action naturally yielded no results and there was no reply to our correspondence.  The Minister of Agriculture was unable to do anything because certain ministry colleagues supported the SOGUIPAH in its expropriation of land.

In the face of this flagrant indifference on the part of the authorities at all levels, we were forced to take this case before the Economic Community of West African States (ECOWAS) Court of Justice.  Given the state of affairs, we considered that Guinean justice was unable as well as unwilling to rule on this case when we know the degree of involvement that certain very high-ranking government officials who receive very substantial payments from SOGUIPAH have.

To corroborate this, it should be mentioned that the N'zérékoré Court of First Instance, in a flagrant, manifest violation of the law, issued an ordinance to authorize enforcement of an expropriation decree that was being legally contended.  It was this enforcement that triggered a campaign of intimidation and abuses of the Saoro district community’s human rights.  It thus became illusory to take this case before Guinean court and expect to obtain justice.  This is why, given our experience, it seemed more judicious for us to take the case to an international forum, i.e. the Economic Community of West African States (ECOWAS) Court of Justice to seek justice.

We have also sought justice in the Guinean courts, this time against Société Minière de Dinguiraye (SMD), a company that mines gold in the village of Siguirini in Upper Guinea.  In its mining activities, SMD has widely contributed to the destruction of the environment, and particularly to water pollution, the destruction of wildlife and so forth.  This has led the village of Siguirini to file suit and seek legal redress for all of the damages resulting from this gold mining.

To appease the population, SMD undertook to build social infrastructure, that is schools, hospitals, and to employ a large proportion of the villagers in unskilled jobs in the company.  Unfortunately, it did not honour its undertakings.

In despair, the villagers contacted me through the Centre International pour le Commerce et le Développement (CECID – International Centre for Trade and Development), a Guinean NGO, in order to legally pursue SMD’s respect for the commitments it freely engaged in to repair the damages inflicted on the people of Siguirini from its mining activities.

We won the case in the first instance before the Siguiri justice of the peace and SMD was ordered to repair the damages.  However, the company appealed the decision, and the case is now pending before the Kankan Court of Appeal.

What challenges (legal or practical) do you face in seeking to hold companies legally accountable in Guinea?  Do you think there has been any progress in this area in your country?

In our activities to defend and protect economic, social and cultural rights of the population, we often run into a series of difficulties, some of which are endogenous while others are exogenous.

There are a host of different exogenous difficulties stemming from State actors (government authorities, generally) and non-State actors (private or public-private companies as well as multinationals).

The first type of difficulty stems from the fact that these different actors, supported by their prerogatives as public powers and their great financial clout, benefit from quasi-total impunity when they violate the law, or even the specifications tied to their activities.  For instance, a mining company in the area (Rusal in Fria) alleged a walkout movement on the part of its personnel to close its Fria factory.  All of a sudden, hundreds of factory personnel found themselves out of work without the State being able to make even the most minor gesture in their favour.

A second type of difficulty is the executive power’s influence over the functioning of justice.  

In Guinea, justice very often acts according to the interests of companies with certain financial clout.  These companies pay a lot of money to certain State authorities making it very difficult to take a case before Guinean courts and win.

A third type of difficulty involves security.  We are human rights defence attorneys but have no guarantee of security in the work we do.  There are colossal economic interests at stake when we censure companies.  And yet we have no special security.  We live like any other common citizen and are very vulnerable.

The other difficulties are endogenous, in other words they are tied to the functioning of our association.

In fact, there are financial difficulties linked to the cost of legal proceedings.  The local population who are victims of human rights abuses are unable to pay for the proceedings, for the lawyers’ fees.  This poses a problem because the State does not normally pay for this type of expense since there is no legal aid in Guinea.  We are forced to resort to external funding to be able to help these people.  For instance the SOGUIPAH case that we took before the ECOWAS Court of Justice and which has generated a lot of costs (air fare, proceedings, messangers) was made possible thanks to funding from the Comité Catholique contre la Faim et pour le Développement (CCFD - Terre Solidaire) a French organization.

In other words, for these legal actions aimed at companies, we have to count on external funders who unfortunately respond based on their own interests.  Our difficulty lies in gaining access to funding in order to effectively ensure the defence of locals who are victims of human rights abuses perpetrated by companies.

And finally, we are up against the lack of training of our staff given the complexity of certain cases involving a host of different fields in which we do not necessarily have expertise.

Also, in terms of progress, I should highlight the fact that companies’ awareness is increasing, and they are gradually understanding that they cannot expect to abuse the rights of communities and remain unpunished.  Our legal actions have substantially contributed to this. 

We also need to work to spark the interest of lawyers in these types of cases which require a lot of work and a great deal of risk and which are not necessarily well paid.

For the time being, lawyers are not really eager to embark on this sort of judicial adventure that does not pay.  Locals who are already poor cannot pay legal fees and this leads us to need to step up cooperation with the Bar Association to train lawyers in defending community interests so that, once funding has been obtained, they can be sent these cases to defend.  I am one of the rare lawyers to engage in this type of work in Guinea, and I hope that others will join me in what I believe is a very noble struggle.

As it is plain to see, progress remains minimal since companies pay a lot of money illicitly to certain government officials in exchange for their unwavering support.

To cite an example, a Chinese company has set up business in the forest region.  This company is systematically felling all of the forestry stocks in southern Guinea, which are packed and sent to China.  Voices have been raised to denounce this massive destruction, and the State had discontinued this Chinese company’s activities for a time.  We don’t know how, but the company has gone back to its business in full swing, and its workers are exploited and very poorly paid.

What are consequences or repercussions have you encountered as a result of your advocacy for human rights?

We face the stigmatisation of allegedly conniving with Western powers to destabilize the country under to guise of human rights.  The fact that we denounce domestic or multinational companies in Guinea or the fact that authorities at different levels of government have interests poses a threat and therefore stirs up discontent not only among the officials in question, but also the companies denounced or taken to court.

Nevertheless, for the time being there have not been any direct threats. When we meet the heads of these companies at a conference, they often let me know that they are discontent about their companies being brought to court.

The situation may change when a company like SOGUIPAH finds itself sentenced to withdrawing from the land it illegally grabbed and paying damages and interest.  A ruling like this could change the situation, and we would also pay more attention to our security.

There is also a SOGUIPAH smear campaign targeted at us that consists of telling the locals that the fact the company has been taken to court could lead to its bankruptcy and disappearance.  Jobs would thus be threatened, and the appeal is made to certain villagers to disassociate themselves from the legal action.

When the locals report this to us, we often ask them to remain confident and not let themselves be distracted by this action that manifestly is aimed at steering the action off course.  We seize the opportunity to assure them that we have strong chances of winning the case.

For the time being, we have not suffered any defamation.  But there is a certain amount of discontent on the part of the companies.

Do you ever collaborate with lawyers from other countries?  If so, how?

In the case of the proceedings against the State of Guinea because of SOGUIPAH, we worked with Me Kane, a Senegalese lawyer who gave us information on how to take the case to the ECOWAS Court of Justice.  We have also had exchanges regarding the drafting of the complaint.

We work with certain organisations such as Amnesty International and the International Federation of Human Rights (FIDH) with whom we exchange information.  We have also worked with the UN High Commission for Human Rights regarding the conducting of preliminary investigations in the field.  We have also worked on the issue of torture of locals with ACAT France (Action des Chrétiens pour l’Abolition de la Torture – Action of Christians for the Abolition of Torture).

The legal action that we have taken against SMD, CECIDE (Centre du Commerce International pour le Développement), a Guinean organization, benefited from the financial support of the Fund for Global Human Rights based in the United States in Washington, D.C.

What can the international community do to help?

It can encourage lawyers who take risks to engage in legal action against companies that have a lot of manoeuvring room in the country.  It can help to ensure the security of lawyers and facilitate access to funding so they can effectively do their work.

Furthermore, the international community should push states to apply the international conventions they have signed.  When NGOs point their fingers in certain situations, the international community would need to take a more active role in engaging with the State in question.  In certain countries, companies have a lot of power because they even fund presidential campaigns.

For instance, in Guinea, it is SOGUIPAH that sets the price of latex produced by the locals, a price that is naturally very low, and prevents them from crossing the border into Liberia to sell the same product at a price five times as high.  This situation contributes to increasing poverty in the region.  The Guinean government does not want to do anything to protect economic and social rights because of the influence this company has on the government.

The international community can also help national NGO capacity building in several fields and particularly in economic, social and cultural rights.

What would be your main message to the business community regarding accountability for human rights abuses?

The message that we can send companies is to demand they integrate human rights in their daily business.  We are aware of the fact that they are profit driven and seek to maximise profits, and very often this is incompatible with respecting communities’ human rights.

This is why States must safeguard the respect for human rights as stipulated in their domestic legislation and in international conventions.

Major regional blocks like the European Union or the African Union should be able to join in the task by imposing, where necessary, embargos on products from companies that manifestly abuse human rights.

States should not let themselves be influenced by companies, whatever their financial clout may be.  Otherwise, politically unstable, economically weak countries like Guinea, with fragile governance, will be at the mercy of these companies.