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Lawyers' insights on corporate legal accountability: Paul Frestus Mvula, Church and Society Programme, CCAP Synod of Livingstonia

Paul Frestus Mvula of the Church and Society Programme at CCAP Synod of Livingstonia

Paul Frestus Mvula of the Church and Society Programme at CCAP Synod of Livingstonia tells the Corporate Legal Accountability team about challenges, opportunities and lessons learned in his corporate legal accountability work (Jul 2020).

1. What are the biggest challenges you face in your corporate legal accountability work?

There are a few challenges we have faced so far.

o The first challenge relates to funding. As much as we have funding for litigation, we do not have adequate funding to run advocacy activities alongside the case to ensure that the case remains live outside the court and among various stakeholders.

o The other challenge is access to information that could help the case. In Malawi access to information still remains a challenge despite the passing of access to information law. For instance, in the Kanyika case, some files relating to household assessments done by the government relating to relocation are no longer accessible. This forced us to come up with our own assessment to help in the litigation process.

o The third challenge relates to the slow pace at which the case is progressing. For instance, it is now over two years since the case started. The case continues to drag and it is just now that the court has ruled that the case will go for full trial after both parties failed to agree during mediation. Communities are losing hope with this prolonged delivery of justice.

o Lastly, this is the first time that communities in Malawi have taken mining issues to court. Thus, CSOs do not have an experience on how to handle such matters. We are heavily reliant on players in the regions and beyond to provide technical as well as financial support.

2. What key opportunities do you see for promoting corporate legal accountability (at the national, regional or international levels)?

One opportunity that I see is the possibility of a favourable ruling that favours the locals to have an influence in future mining advocacy work within the country as well as regionally and internationally.

The second opportunity is that there is potential to influence legal and policy frameworks within the region to protect indigenous local communities following landmark rulings.

The legal fraternity will borrow lessons from landmark rulings and apply them in their local settings thereby strengthening their laws and court procedures and processes at national, regional and international level. This will also bring increased interest among the legal fraternity.

Multinational companies will become more responsive and accountable to the local needs and promote more engagements with the locals. In addition, multinational companies will engage in programs that leave tangible benefits to the locals and not only central governments.

It will also help to track effective implementation of the African mining vision.

As CSOs and mining communities get involved in litigation, this will build capacity of the local communities and CSOs thereby boosting their confidence to face any multinational company.

3. What key lesson(s) have you learned in your efforts to advance corporate legal accountability?

Multinational companies continue to focus much more on profits with little regard to community needs.

Malawian courts are too slow to process cases and pronounce their judgments. Understandably, this is the same problem within SADC region. Thus, mining communities go for years waiting for their court cases thereby making them lose interest in the process. This discourages other mining communities to pursue the litigation route in the future.

There is a need to make litigation resources (manuals/guides) available to more CSOs including local communities. This could help in preventing litigation that are sometimes costly since communities will take multinationals to task via other routes i.e. advocacy.

Naming and shaming continues to be the best tool to hold multinationals to account particularly for those from countries or regions that value human rights.

There is a danger that multinationals can buy off lawyers representing the community. This could effectively kill off any case.

Poor countries have challenges to counter multinationals. Even when cases of human rights violations commence against such companies, governments such as the Malawi government, tend to side with multinationals in the spirit of ensuring that foreign direct investment is not affected.