Is it time for African countries to introduce mandatory due diligence on human rights?

29/7/19 - Joseph Kibugu, Eastern Africa Senior Researcher, BHRRC

The failures of self-regulation suggest mandatory legislation is needed to prevent corporate human rights harms in Africa, writes Joseph Kibugu.

This blog is part of a series 'Towards Mandatory Human Rights Due Diligence'.

Africa’s importance to the business world continues to grow, both as a market for commodities made elsewhere thanks to an ever-growing population, and as a source of raw materials due to its rich reserve of mineral resources.  Yet as we have seen with the alleged water pollution in Zambia by mining company Vedanta, cases of harm to individuals and communities arising from business activities continue to be reported. These are often compounded by limited options for victims seeking redress, with avenues available often taking too long and costing too much.  

The prospect of mandatory human rights due diligence (MHRDD) legislation to require businesses to identify, prevent and redress their human rights impacts should be considered to ensure this growth is not at the expense of human rights in Africa.

Domestic justice systems continue to be the preferred avenues for seeking redress by victims of business-related harm. However, legal and procedural obstacles remain in several countries, making justice a mirage. In the absence of effective domestic remedy, victims of business-related harm have had to seek justice in the home states of companies whose subsidiaries caused the harm.

In April the UK Supreme Court allowed the local community in a mineral-rich area in Zambia to sue the parent company of a Zambian subsidiary for alleged pollution, and the attendant complications to their health. In May a Dutch court ruled that it has jurisdiction to hear a case where Royal Dutch Shell has been accused of complicity in the Nigerian government’s execution of nine environmental activists, who were protesting the oil company’s destruction of the Niger Delta.

All these cases, however, seek remedy for harm that has already been done. What is needed instead is structural solutions that intervene before the human rights harm occurs.

African governments have shown some initiative in promoting respect for human rights by businesses. The Africa Mining Vision provides a framework for extraction which protects local communities from harm by the extractive industry. The African Commission on Human and People’s Rights has expressed its support for the ongoing work towards a binding treaty on business and human rights, born out of the realization that remedy is still rare. 

However, if such a treaty ever becomes a reality, it might take some time before the benefits are realized. Communities and individuals whose lives, health, food and dignity are at risk because of business-related harm should not be made to wait.

Some countries have also reaffirmed their commitments to the United Nations Guiding Principles on Business and Human Rights, which provide a framework for business responsibility, including human rights due diligence to identify, avoid and redress human rights harm, by adopting National Action Plans on Business and Human Rights (NAPs). These NAPs focus on different aspects of business impacts on human rights depending on their national contexts.  Kenya’s NAP is focused on five themes: land, environment, labour, revenue transparency, and access to justice. Zambia, Uganda, Liberia and Morocco are also working on their own NAPs.

Adoption of mandatory human rights due diligence (MHRRD) is a trend that is gaining currency, especially in Europe, and is worth studying. Such legislation obligates businesses to identify human rights risks within their supply chains wherever they are operating and take effective measures to address them. They go beyond mere transparency laws, such as the UK’s Modern Slavery Act, which only requires companies to report on any steps taken to prevent forced labour in their supply chains, but does not require companies to take any action.

France, for example, adopted the Duty of Vigilance Law in 2017, which covers businesses that have more than 5,000 employees in France or 10,000 globally (including their subsidiaries). The law requires companies to carry out due diligence and report on the steps it takes to address the risks it identifies. The Netherlands recently adopted a MHRDD law that is specific to child labour. The European Union is considering EU-wide MHRDD legislation. These countries must have appreciated the limits of self-regulation of businesses through voluntary principles in preventing and addressing their adverse human rights impacts.

Is it time for African countries to consider MHRDD for businesses that meet a certain threshold, as a tool to help avoid such harms? In many cases, developers are already required to conduct a mandatory environmental impact assessment before building a ten-unit housing block. Yet the same jurisdictions have no mandatory requirement for businesses to assess their potential human rights impacts, despite the risk of negative impact on communities through death, disease and displacement, or deprivation of livelihoods - as the Nigeria and Zambia cases above demonstrate. Kenya is leading the way with the NAP requiring the NAP implementation committee to consider the suitability of such legislation.

Africa countries should not await other countries to take measures to protect those whose rights are abused by businesses operating in Africa. Introduction of MHRDD legislation for certain classes of business could compel them to begin considering their human rights footprint. We do not have to copy what Europe is doing, but neither do we have to reinvent the wheel. We could immensely benefit from looking at the ongoing developments in Europe - and the gaps that have already been identified - to come up with a version of this regulation that works for people in Africa.

Joseph Kibugu is Eastern Africa Senior Researcher, Business & Human Rights Resource Centre.