While the landscape in the extractive industry in Africa has changed dramatically with the enactment of several laws, a lot of grey areas still abound. Accountability and transparency in the benefit-sharing arrangements are still faced with challenges.
With the anecdotal evidence from some African countries such as DRC, Uganda, Kenya, Tanzania, Niger and Ethiopia, where mining and dam construction have been characterized by corruption, participants spoke of how host communities were excluded from benefits and lacked information on process in the industry. Governments need to put in place mechanisms that will enhance public participation, access to information and community access to related resources.
These were some of the issues raised during the just-ended 4th Africa Coalition for Corporate Accountability (ACCA) General Assembly, held in Pretoria, South Africa recently. The assembly agreed that there is no price to the human rights violations that have occurred in many of the affected communities due to major projects.
You cannot put a price to the human rights violations that have occurred in many of the affected communities.
“They need justice,” said Dr. Attiya Waris Senior Lecturer, Commercial Law Department, School of Law, University of Nairobi, speaking about access to financial remedies for communities affected by human rights abuses of mining corporations in Africa.
Dr Waris called upon ACCA members to commit to work together using various creative ways in ensuring the mandate of the coalition is accomplished.
The participants questioned the commitment of international organisations towards the protection of human rights in certain communities.
“There is a need for more home-grown grievance mechanisms in providing access to remedy for communities. Lack of implementation of court orders is a worldwide challenge that also needs to be looked at,” she added.
During the last day of the assembly, participants debated the definition of free prior and informed consent (FPIC) and advocated for the inclusion of gender and persons with disabilities.
FPIC says indigenous people shall not be forcefully removed from their land without free, prior and informed consent of the people concerned, and after they’ve agreed to fair compensation.
At International Rivers, we have seen and witnessed people being removed from their homes by major hydropower dam construction without proper compensation.
“Communities should be spoken to in the language they understand and their norms and traditions should be taken into account,” said Michel Yoboue from ACCA. “ACCA is here to defend the communities. We should therefore be very inclusive and broad so that no one is left out.”
Social economic disadvantages
The socio-economic disadvantages of most affected communities make them vulnerable to bribery by corporations and government.
It was revealed that at times corporate organisations and government take advantage of vulnerable communities, especially those who are not well educated and do not fully understand the process.
Dr Waris said the application of FPIC to non-indigenous groups needs to be considered. “The must be FPIC for women. Women must be included and involved in the negotiation process.”
Lack of information, extreme poverty and lack of an impartial body to receive complaints prevent communities and individuals from accessing remedy, she added.
“There must be deep reflections on navigating and engaging with systems of judicial and non-judicial remedies inherited from the colonialists. Also greater accountability in the process of negotiating compensation agreements is needed. We must get key stakeholders to pay attention.
“In looking at fiscal remedies there should be a focus on measuring the harm, choosing the forum, asking for restitution and enforcing the remedy,” Dr Waris said.
One of the challenges of alternative dispute resolution is that the decisions are secret and cannot be challenged or reassessed by a third party without both parties’ consent.
“Discussing non-judicial remedies, how can a structure or corporation that is part of a violation create a grievance resolution mechanism that is unbiased? Looking at judicial remedies, lack of legal development in many African countries affects access to remedy,” said the legal lecturer.
Effective remedy is not limited to financial compensation but can potentially take different substantive forms such as apologies, restitution, rehabilitation, punitive sanctions and other measures to prevent harm.
Remedy for affected communities must include transparency, accountability, responsibility, effective and efficient interventions she concluded.