Across southern Africa, accusations are increasingly being levelled against businesses – be they local, foreign or multinational – for conducting their daily operations with complete disregard for the human rights of their employees, the local communities and the region’s citizens, particularly now that many countries are experiencing an extractive industry boom.
Usually human rights violations are associated with the State because of its power and its inherent obligation to protect and promote the rights of its citizens. But companies are also powerful and can be just as oppressive, which is why there are growing calls for them to respect human rights.
Because of the growing concerns about the un-checked behaviour of many companies, a variety of international standards and practices have been developed to regulate the way businesses’ operate and reduce their violations of human rights.
One example is the 2003 sustainable development framework adopted by the International Council on Mining and Metals (ICMM), which seeks to uphold fundamental human rights and promote respect for cultures, customs and values in businesses’ dealings with employees and with others who are affected by their activities. There is also the much more widely known Kimberley Process Certification Scheme (KPCS or Kimberley Process), which aims to ensure that diamond production and trade are ‘conflict-free’, meaning that diamonds, which are extracted from conflict zones or extracted with disregard for human rights, will not be accepted in the international market. Ten out the fifteen SADC countries belong to the KPCS.
There is also the African Mining Vision (AMV) – an African Union policy document, which was adopted as the basis for the development of the African mining sector and aims to eliminate human rights abuses in the mining sector and the possibility of natural resources fuelling conflicts.
Another relevant mechanism is the model mining development agreement (MMDA) project of the International Bar Association (IBA), which is based on international best practice principles and is intended to serve as a negotiation template for investor-state agreements in the mining sector in developing countries. An important focus of the MMDA project is sustainable development through effective community participation.
But critically, in the section where it regulates the rights and obligations of governments and investors, the MMDA highlights the need for both to commit to the protection and promotion of the human rights of all individuals affected by a mining project. It also dictates that companies must ensure that their operational policies reflect their responsibility to respect human rights and are designed to prevent, mitigate and remediate any potential or actual negative human rights impacts from mining operations.
The great thing about these initiatives is that they were conceived and created by the relevant sectors, illustrating that these sectors are mindful of the potentially negative impacts of their hazardous operations on human rights and the need to prevent or mitigate them. However, the downside of these mechanisms is that they are self-regulatory and voluntary, with exception of KPCS, so that businesses are not obliged to join or to follow the rules and regulations.
The Southern Africa Development Community (SADC) also came up with its own protocol on mining in 1997, but it is more of a technical cooperation policy than a regulatory framework. However, in relation to environmental protection, the protocol states that ‘member states shall promote sustainable development by ensuring that a balance between mineral development and environmental protection is attained’ – making it clear that mining should not be at the environment’s expense.
The protocol also recommends that member states ‘shall promote the economic empowerment of the historically disadvantaged in the mining sector’, which it defines as people with disabilities, women and indigenous people. However, the protocol lacks any enforcement mechanism and has had little impact, especially as the extractive industry boom has accelerated over the past decade.
The UN Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework
Motivated by criticism of a legal vacuum in relation to business and human rights, the United Nations sought to come up with a harmonised framework that would inform member states’ policies, legislation and regulation. The result was the ‘Guiding Principles on Business and Human Rights: Implementing the United Nations ’Protect, Respect and Remedy’ Framework’, which has assumed the character of a soft law.
Adopted in 2011, this framework rests on three pillars. The first is the State’s duty to protect against human rights abuses by third parties, including business enterprises, through appropriate policies, regulation and adjudication.
The second is the responsibility of corporates to respect human rights – by acting with due diligence to avoid infringing anyone’s rights and addressing any adverse impacts linked to their activities. By stating that businesses have a responsibility to respect human rights, the UN Guiding Principles mean that they should respect internationally-recognised human rights – understood, at a minimum, as those expressed in the International Bill of Rights and the International Labour Organisation’s Declaration on Fundamental Principles and Rights at Work.
The third pillar is the need for greater access by victims to effective remedies, both judicial and non-judicial.
One of the foundational principles defined by the UN Guiding Principles is that States should clearly establish that all business enterprises domiciled in their territory and/or jurisdiction are expected to respect human rights throughout their operations. But this principle is regularly ignored.
Business and human rights
Businesses are for profit organisations and should not be apologetic about pursuing their goal. On the contrary they should be encouraged to be as profitable as possible. However, whatever measures they take, it cannot be at their expense of their employees and customers, or at the expense of the surrounding environment and host communities. It has to be within the parameters of the law.
And the simple fact is that successful businesses and respect for human rights are not mutually exclusive. In fact, human rights and business are intertwined. Human rights play a role in the daily operations of every business. For instance, human resources departments use the right to equality and freedom from discrimination as a basis to employ and promote employees, while staff members also have the right to decent working conditions and to join a trade union.
But the reality is that many businesses, particularly in the extractive industries and particularly in developing countries, do not make any meaningful effort to protect human rights, even when their operations pose a significant risk – as was the case with the environmental damage caused by the Lesotho Highland Water Project or the relocations carried out by VALE at its vast new coal fields in Mozambique.
In conflict affected areas the threat is even greater since the State may be unable to protect human rights adequately due to a lack of effective territorial control, as is the case of the Democratic Republic of Congo (DRC).
So how should companies behave?
The UN Guiding Principles call on companies to undertake human rights due diligence in the same way that they undertake feasibility studies, commission legal due diligence and environmental impact assessments prior to starting their operations.
This is premised on the assumption that accurate due diligence will equip the company with information and mechanisms to identify, prevent and mitigate their adverse human rights impacts. The process should include assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are address. In accordance with the UN Guiding Principles, human rights due diligence should:
Due diligence should include internal and external risk analysis, and involve meaningful consultation with potentially affected groups and other relevant stakeholders. It should also not be limited directly to a company’s operations but should also include its supply chain.
While many businesses see this requirement as an additional burden, human rights due diligence can help businesses to mitigate the risk of legal claims against them by showing that they took every reasonable step to avoid human rights violations. However, businesses conducting such due diligence should not assume that, by itself, this will automatically and fully absolve them from liability for causing or contributing to human rights abuses.
The Guiding Principles also recommend that because human rights situations are dynamic, assessments should be undertaken periodically throughout the life of an activity or relationship.
Conclusion
There is no doubt that the booming mining industry has the potential to contribute enormously to economic development, poverty alleviation and people’s quality of life throughout SADC. However, it is also clear that it can, if not regulated and monitored properly, contribute to corruption, human rights violations and growing inequality – as is the case across southern Africa.
In some countries, the damaging consequences of businesses that have been largely left to their own devices are already being – from acid mine drainage to contaminated rivers, from airborne pollution to toxic waste, from atrocious working conditions to abusive relocations. And companies will continue to operate in these ways as long as they are allowed to get away with it – so it is vital that governments force companies to adhere to standards and regulations.
Indeed, the problem in SADC countries is generally not the lack of proper regulatory frameworks, but the lack of political will and bureaucratic capacity to implement the existing ones. In particular, the close ties between the ruling political elites and businesses in many countries are cause for serious concern. In some cases, business seems to have completely captured the political elites.
The result is secretive contract negotiations and agreements, a lack of information about taxes and revenues and carte blanche for companies – particularly mining multinationals – to act with impunity. The answer is to develop stronger oversight mechanisms that can be used by civil society organisations, parliaments, national human rights institutions and courts to enhance transparency, accountability and the behaviour of businesses.
But obviously, governments have a critical role to play – and if they play it correctly, they can ensure that the mining boom benefits all their citizens and not just the company and a favoured few. Governments should implement the regulations and punitive measures that are already in place as well as instituting a few more, such as making human rights due diligence a compulsory pre-condition for any project – and ensuring that the process involves the communities and all other affected parties, and that the final report is made public along with all agreements between the company and the government.
It is a myth concocted by business and its political backers that countries will lose investment if they put in place stringent human rights regulations. What is not a myth is that companies will behave as badly as they can, particularly mining companies, which will exploit people and the environment to the limit if they are not regulated by government.
It really is time for governments to stop putting short term profits and unsustainable promises of ‘job creation’ before the rights of citizens and communities. And it is certainly time for the extractive industry to stop putting profits before people. After all, good corporate citizenry is good for business, communities and the State and is the only way that southern Africa – and southern Africans – will genuinely benefit from the current extractive-led economic boom.
Bibliography:
1. Southern Africa Development Community, “Protocol on Mining”, 1997;
2. Africa Union, “Africa Mining Vision”, 2009
3. United Nations, “Guiding Principles on Business and Human Rights: Implementing the United Nations ’Protect, Respect and Remedy’ Framework”, A/HRC/17/31, 2011
4. ICJ, “Access to Justice: Human Rights Involving Corporations”, 2010, South Africa,
5. Global Compact Network, Business & Human Rights Initiative, “How to do business with respect to human rights: a guidance tool for company”, 2010, Netherlands,
6. Vusi Mashinini, “The Lesotho Highlands Water Project and Sustainable Livelihoods Policy Implications for SADC”, AISA Policy Brief 22, June 2010
7. SARWA, “Coal versus Communities in Mozambique: Exposing poor practices by VALE and Rio Tinto ”, 2012
8. International Council on Mining and Metals www.icmm.com
9. Kimberly Process Certification Scheme www.kimberleyprocess.com
10. Model Mining Development Agreement www.mmdaproject.org
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