1st Edition
Implementing Business and Human Rights Norms in Africa: Law and Policy Interventions
This book examines the contemporary and contentious question of the critical connections between business and human rights, and the implementation of socially responsible norms in developing countries, with particular reference to Kenya, Nigeria, and South Africa. Business enterprises and transnational corporate actors operate in a complex global environment, especially when operating in high risks sectors such as oil and gas, mining, construction, banking, and health care amongst others. Understanding human rights responsibilities, impacts, and socially responsible behaviour for companies is therefore an essential component of corporate risk management in our current world. The release of the United Nations Guiding Principles on Business and Human Rights, an instrument consisting of 31 principles on this issue, has further underscored the emergence of a rapidly developing set of international law norms on human rights responsibilities of businesses and transnational corporations. It has also shaped the discourse on corporate accountability for human rights. In addition to minimizing litigation, financial and reputational risks, understanding and demonstrating corporate respect for human rights is vital to building a culture of trust and integrity amongst local communities, investors, and shareholders. While Africa has been at the receiving end of deleterious activities of corporate actors, it has failed to address corporate impunity and human rights violations by non-state actors. Questions abound revolving around the underpinnings of a corporate responsibility to respect human rights, that is, how non-western and particularly African conceptions of respect may help develop a beyond do no net harm approach to respect; policy discourses on human rights due diligence, human rights impact assessment; mandating corporate respect for human rights in both domestic and international law.
This book examines, clarifies, and unpacks the guiding principles of a rights-based approach to development and social inclusion. It offers an excellent exposition of regulatory capacity, institutional efficacy, and democratic legitimacy of governance institutions that shape development including a comprehensive analysis of how states are shaping business and human rights discourses locally to develop a critical understanding of identified issues by exploring the latest theories through comparative lenses.
Preface
Acknowledgements
List of abbreviations
Introduction
PART I Introductory context and principles
1 Introduction
1.1 Background
1.2 Business and human rights in Africa: legal context, challenges, and overview
1.3 Nature, aim, and scope of the book
1.4 Justification for the book
1.5 Structure of the book
1.6 Conclusion
2 Nature and scope of business and human rights challenges in Africa
2.1 Introduction
2.2 A third world approach to business and human rights in Africa
2.3 Country case studies
2.3.1 Niger-Delta: the Ogoni experience
2.3.2 The Marikana incident (South Africa)
2.3.3 Lake Turkana Wind Power Project (Kenya)
2.4 The role of the African Union
2.5 Africa’s trade regime and human rights implications
2.6 Conclusion
3 Corporate governance paradigms and regulatory framework
3.1 Introduction
3.2 Theoretical basis for implementing business and human rights principles
3.3 Competing theories of corporate governance
3.3.1 Social change as a system of corporate transformation A. Business respect for human rights
3.3.2 Shareholder value principle
3.3.3 Stakeholder theory
3.4 Stakeholder value approach
3.5 The board structure of a firm: correlative rights and duties between corporations and local communities
3.5.1 Social license validates the responsibility and power of firms
3.5.2 Transparency and accountability are sine-qua-non for obtaining social licence to operate
3.5.3 Cost-benefit analysis and environmental impact assessments prevent unmitigated violation of human rights
3.5.4 Firms as moral agents owe society social service responsibility
3.6 Sustainable approach to business and human rights principles
3.6.1 Incentivizing socially responsible projects
3.7 Conclusion
PART II Human rights-based approach to business and human rights in Africa
4 Corporate duty to respect human rights
4.1 Introduction
4.2 Corporate Human Rights Due Diligence (HRDD)
4.3 Corporate Human Rights Impact Assessment (HRIA)
4.4 Conclusion
5 Integrating a rights-based approach to developmental projects
5.1 Introduction
5.2 A human rights-based approach to developmental governance
5.3 What is a human rights-based approach to developmental governance?
5.4 Adaptation of HRBA to development projects
5.4.1 Participation A. The nature of participation B. Scope of participation C. How is participation occurring?
5.4.2 Accountability and transparency
5.4.3 Access to information
5.4.4 Non-discrimination and fairness
5.5 Conclusion
6 Access to effective judicial and non-judicial remedies
6.1 Introduction
6.2 Legitimacy and the question of access
6.3 Effective judicial and non-judicial mechanism
6.4 Elements of access to remedies
6.4.1 Effective administration of justice
6.4.2 Creating a standard legal framework for corporate liability
6.4.3 Access to appropriate forums
6.5 Conclusion
PART III Implementing the protect, respect, remedy framework in Africa’s energy and extractive sectors
7 Policy and legal framework in Nigeria
7.1 Introduction
7.2 Constitution (1999)
7.3 The Petroleum Industry Act (2021)
7.3.1 Regulatory and institutional reforms
7.3.2 Establishment of a host community development trust
7.3.3 Environment management plan
7.3.4 Gas flaring
7.3.5 Access to information
7.3.6 Transparency and accountability
7.3.7 Abandonment, decommissioning, and disposal
7.4 Transitional provisions
7.4.1 Petroleum Act (1969)
A. The Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (EGASPIN)
7.4.2 Oil Pipelines Act (1956)
7.5 Environmental Impact Assessment Act (1992)
7.6 The Land Use Act (1978)
7.7 Companies and Allied Matters Act (CAMA) 2020
7.7.1 Human Rights Due Diligence (HRDD)
7.8 The National Oil Spill Detection and Response Agency (NOSDRA)
7.9 Niger-Delta Development Commission (NDDC)
7.10 National Environmental Standards and Regulations Enforcement Agency (Establishment) Act 2007 (NESREA Act)
7.11 Nigerian National Human Rights Commission Act (1995)
7.12 Corporate criminal jurisdiction
7.13 Conclusion
8 Policy and legal framework in South Africa
8.1 Introduction
8.2 Constitution of the Republic of South Africa (1996)
8.3 Companies Act (2008)
8.4 Mineral and Petroleum Resources Development Act 28 of 2002 (amended in 2008) (MPRDA)
8.4.1 Social and labour plan
8.4.2 Closure and abandonment
8.4.3 Mineral rights ownership
8.5 The National Environmental Management Act 107 of 1998 (NEMA)
8.6 Environmental impact assessment
8.7 South African Human Rights Commission (SAHRC)
8.8 Conclusion
9 Policy and legal framework in Kenya
9.1 Introduction
9.2 Constitution of Kenya (2010)
9.3 Companies Act (2015)
9.4 The Petroleum Act (2019)
9.5 Mining Act (2016)
9.5.1 Environmental rehabilitation and restoration plan
9.6 Business and human rights challenges in Kenya
9.7 National Action Plan (NAP) on business and human rights
9.8 Conclusion
10 The future of business and human rights in Africa
10.1 Introduction
10.2 Global adaptation of business and human rights principles
10.3 The future of business and human rights
10.3.1 Global Memorandum of Understanding (GMOUs)
10.3.2 Business and Human Rights Unit (BHRU)
10.4 Challenges to implementation of business and human rights principles
10.4.1 Gender disparities
10.4.2 Developing national action plans
10.4.3 Political will
10.4.4 Environmental democratisation
10.5 Conclusion
Index
Biography
Oyeniyi Abe is Lecturer in Law at Huddersfield Business School, University of Huddersfield, United Kingdom. His areas of expertise are business, trade and human rights in Africa, extractive resource governance, investment law and sustainable development. He is also a Research Associate at the Centre for Comparative Law in Africa, University of Cape Town, South Africa.
