I. Introduction
Natural resources have had an enormous impact on Africa. Some of the continent’s deadliest conflicts—the Second Congo War (also known as the Great War of Africa or Africa’s World War),Footnote 1 the Democratic Republic of Congo’s prolonged conflicts,Footnote 2 Libya’s fragmented political fabric and ongoing violence,Footnote 3 Nigeria’s Odi Massacre,Footnote 4 Sierra Leonean war and Liberian warFootnote 5—exemplify the weightiness of natural resources on Africa. Since the 1990s, natural resources have been common denominators in most intra- and interstate conflicts in Africa, either triggering or sustaining the conflicts. Nowhere is state abdication of the responsibility to protect human rights more evident in the region than in the extractive industry. Amidst the stories of resource mismanagement, Botswana has demonstrated that it is possible to break the resource curse in Africa by integrating anticorruption, accountability and transparency policies and an effective natural resource regulation regime.Footnote 6 Unfortunately, in most parts of Africa, resource-related conflicts and human rights cruelties persist and remain a testament to the repercussions of ineffective regulation of resource extraction.
In July 2021, the African Commission on Human and Peoples’ Rights (‘African Commission’ or Commission) unanimously adopted a study report on the extractive industry’s impact on human rights realisation in Africa.Footnote 7 Based on field visits across the continent from 2013 to 2019, the report unveils the alarming enormity of the detrimental effects of extractive projects on human rights, including women’s rights and the rights to health, security and life.Footnote 8 In addition, the study highlights the roles of foreign extractive investors in rising cases of illicit cash flows out of the continent and resource-related terrorist activities. The impacts of extractive operations can be particularly severe for communities near or directly impacted by extractive operations (local communities) due to governments’ dependence on natural resources, weak governance and socioeconomic problems.
Africa is blessed with a significant proportion of the world’s natural resources, including oil, gas, copper and minerals.Footnote 9 The continent’s extractive sector holds immense potential to propel its economic liberation and development. Unfortunately, harnessing resource benefits has not only proven difficult but also ignited armed conflicts, human rights abuses, socioeconomic inequalities, environmental degradation and political unrest. Local communities’ incessant remonstrations and the resultant violence have not discouraged multinational corporations (MNCs) from swooping in to tap into the continent’s resources.Footnote 10 In 2021, foreign direct investment in African countries reached a record high of US$83 billion, more than double the US$39 billion reported in 2020.Footnote 11 African states’ international project finance transactions increased by 26 per cent in 2021, compared to 2020, with a substantial increase in extractive sectors.Footnote 12
As foreign investment into Africa’s extractive sector intensifies, this article provides a timely assessment of the region’s human rights system. However, human rights protection in the extractive industry remains one of the continent’s leading predicaments. While not discounting the essentiality of a legally binding international BHR instrument in closing the accountability gap, I argue that Africa has a robust legal structure that prescribes MNCs’ social responsibilities. The region shaped the development of global human rights norms by conceptualising and guaranteeing specific rights in a binding instrument, including rights to development and a healthy environment. Regional quasi-judicial decisions helped breathe life into these rights by confirming their applicability and binding nature. I establish that extractive MNCs’ human rights responsibilities are not voluntary. Their deleterious practices have been sustained by states’ failure to enforce human rights standards and local communities’ inability to hold them accountable. In addition to the region’s broad-ranging human rights and investment initiatives, the African Union (AU) is developing a business and human rights (BHR) policy. While the framework holds the promise of narrowing the accountability gap in the extractive industry, states’ flawed implementation and accountability practices can stifle its effectiveness. Hence, I recommend strategies for implementing the region’s rich human rights and investment initiatives and narrowing the accountability gap in the extractive sector.
I write this article to respond to a persistent paradox in Africa’s extractive sector: despite an innovative regional human rights regime and growing investment governance initiatives, local communities continue to experience serious rights violations with limited access to remedies. The article, therefore, examines why the accountability gap endures beyond the absence of a global binding BHR treaty and argues that the more urgent task is to strengthen implementation, monitoring and enforcement mechanisms that translate existing African norms into project-level practice. To achieve this objective, I adopt a qualitative, doctrinal socio-legal methodology. I combine textual analysis of the African Charter, judicial and quasi-judicial decisions and relevant BHR instruments with a contextual assessment of how these norms operate in resource extraction governance.
This article is divided into six sections. Section 2 discusses the African human rights systems’ leading role in shaping the global human rights normative fabric, using the rights to development and a satisfactory environment as examples. It establishes the obligatory nature of MNCs’ duty to protect human rights and analyses the role of the human rights system in furthering the normative integration of these rights through policy guidelines and adjudicative processes. Section 3 provides an overview of evolving human rights and investment initiatives in the international and regional spheres, including the AU’s BHR Policy Framework. Section 4 examines factors that impede the actualisation of local communities’ rights and barriers to holding extractive MNCs accountable. Section 5 presents recommendations for preserving local communities’ rights and narrowing the accountability gap: domestication of the AU’s Policy Framework on Business and Human Rights; the use of tripartite contracts among states, investors and host communities to translate human rights expectations into enforceable, project-specific obligations supported by clear remedial and dispute-settlement clauses; establishment of a specialised AU monitoring and enforcement body with an independent BHR rapporteur; and judicial and quasi-judicial activism to support the legitimisation of BHR standards and strengthen compliance through reputational and institutional pressure on defaulting states and MNCs. Section 6, the concluding section, summarises the article’s central claim that Africa’s human rights regime already provides a robust, binding regional human rights regime and innovative BHR normative norms. The human rights abuse and corporate impunity in extractive sectors reflect setbacks in enforcing existing legal standards, not the absence of enforceable legal structures. Therefore, Africa’s regional human rights system requires stronger implementation mechanisms and stronger political will to hold MNCs accountable, rather than mere paper commitments from states.
II. Africa’s innovative human rights system
The African human rights system has been at the forefront of generating innovative normative initiatives to protect human rights. The African Charter (the Charter),Footnote 13 a legally binding and primary regional human rights normative framework, guarantees local communities’ rights engaged in resource extraction, including the rights to life and personal dignity, fair trial, physical and mental health and property.Footnote 14 It also protects local communities’ collective rights to equality, self-determination, security, development, a satisfactory environment and freedom to dispose of wealth and natural resources.Footnote 15 The Charter and its protocols are executed through associated institutions, the AU and its constituent bodies, the African Commission and the African Court on Human and Peoples’ Rights (ACtHPR).Footnote 16 The African Commission is established by the Charter to promote and protect ‘human and peoples’ rights…in Africa’.Footnote 17 It functions as a quasi-judicial organ of the AU that monitors state compliance with the Charter, develops guidelines, receives complaints from individuals, organisations and states relating to Charter violations and makes recommendations after considerations on the merits of the issues.Footnote 18 The African Commission’s recommendations are not inherently legally binding. However, recommendations included in the Commission’s Annual Activity Reports may become binding once the report is adopted by the AU’s Assembly of Heads of State and Government pursuant to Article 54.Footnote 19 The African Commission’s functions are supplemented and bolstered by the ACtHPR, a judicial body with power to make binding decisions and remedial orders.Footnote 20 Because individual and civil society access to the Court depends on a state’s Article 34(6) declaration, the African Commission often serves as a pathway to the ACtHPR. Where direct access is unavailable, the Commission may refer the matter to the Court.Footnote 21
For context, I briefly discuss two examples of normative innovations—rights to development and a satisfactory environment. Later in the section, I examine recent developments in Africa’s BHR and investment regime. The recognition of these rights exemplifies Africa’s leadership in pioneering human rights standards. These rights are linchpins of the African human rights system’s response to BHR accountability gaps because they operate as collective rights and highlight the systemic nature of corporate human rights and environmental harms. Given that the ACtHPR’s contentious jurisdiction is primarily over states, the Court relies on rights to development and a satisfactory environment to articulate state obligations to regulate corporate actors, prevent inhumane and hazardous business operations and ensure the meaningful involvement of host communities in resource development and conservation. These rights also provide a suitable context for my analysis of corporate accountability gaps for resource-related human rights violations despite Africa’s robust legal and institutional regime.
A. Right to development
The demand for the right to development was ignited by the Global South’s rejection of the old international law order that legitimised Western hegemony and their demand for a new global order that facilitates the development of all states.Footnote 22 When African scholars and leaders, such as Doudou Thiam, former Senegalese Foreign Minister, and Mohammed Bedajoui, introduced the idea of a right to development in the 1960s, first-world states and scholars ridiculed their aspirations. Gathii reports that first-world scholars resisted the ‘radical demands’ for a right to development and insisted that ‘academic voices like those of Bedajoui who supported this radical vision were shrill, inept and polemical’.Footnote 23 African scholars and proponents of the right to development recognised the interdependence of the rights to development and self-determination. They believed the right to development was foundational to liberating the continent and attaining freedom in the aftermath of colonialism.Footnote 24 For Bedjaoui, ‘the right to development is nothing other than the right to an equitable share in the economic and social well-being of the world’.Footnote 25 Thus, the right was created to address Africa’s challenges in attaining international socioeconomic justice in the post-colonial era.Footnote 26 Despite the derision and pushback from the Global North, Africa led the way by conceptualising the right to development and legally affirming that ‘all peoples have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind’.Footnote 27 The right to development has since gained much popularity internationally and was later adopted in a United Nations (UN) declaration.Footnote 28
The term development has emerged as a staple vocabulary of the international community with multiple conceptions.Footnote 29 Although the resistance against the economic dominance of the Global North set the stage for the Global South’s demand for international recognition of the right to development, the right transcends economic development. Article 22 of the Charter explicitly includes economic, social and cultural aspects. Participation is also an essential component of the right to development.Footnote 30 The concept of participatory development situates participation at the core of development projects. It stresses local communities’ right to determine their future, take part in decisions that affect their lives and have an atmosphere in which people can effectively identify and address their needs.Footnote 31
Over time, the African Commission has expanded the Article 22 jurisprudence. The right to development was affirmed for the first time in the Centre for Minority Rights Development (Kenya) and Others v Kenya. Footnote 32 The African Commission found that the Republic of Kenya violated the Endorois community’s right to development by failing to allow the community to participate in a project on their ancestral land.Footnote 33 It noted that Article 22 of the Charter is violated when a project diminishes the well-being of a community.Footnote 34 The Commission later delivered a precedent-setting decision in IHRDA v Democratic Republic of Congo (IHRDA case).Footnote 35 The issues in the IHRDA case emanated from the brutal human rights violations committed by the Democratic Republic of Congo (DRC) armed forces in the city of Kilwa, south-east DRC, with the support of a Canadian-Australian mining company, Anvil Mining. Local groups protested Anvil Mining’s copper and silver mining operations, resulting in an armed conflict. It is reported that Anvil Mining provided logistical support to the DRC armed forces to facilitate the detention or execution of arrested protesters. After failed attempts to seek redress before the DRC courts, the Institute for Human Rights and Development in Africa and two other civil organisations litigated the matter on behalf of eight victims before the African Commission.
The Commission found that the Congolese government violated a range of Charter-guaranteed rights, including the right to economic, social and cultural development. It ordered the DRC government to pay over US$4 million in compensation to the eight victims, the highest monetary compensation ever awarded by the Commission. The DRC government was also ordered to investigate, prosecute and penalise state agents and Anvil Mining officers involved in the human rights abuses. It is worth noting that the Commission recognised Anvil Mining’s human rights responsibilities and states’ duties to seek redress against MNCs for human rights violations. By explicitly directing the government of DRC to investigate and institute actions against Anvil Mining officials, the Commission articulated states’ duty to hold corporations accountable and the requirement for corporations to remedy their wrongs.
Unfortunately, the recommendations of the African Commission are yet to be implemented. After a twelve-year legal battle and a favourable decision for victims, the DRC government disregarded the Commission’s decision and refused to implement the recommendations.Footnote 36 The IHRDA case exemplifies African governments’ unwillingness to protect local communities’ rights and hold extractive MNCs responsible for breaching Charter-guaranteed rights.
The ACtHPR provided valuable insights into Article 22 rights in the Ogiek case.Footnote 37 The Kenyan government ordered the Ogiek people to be evicted from their ancestral land after granting timber companies licence to log the territory at a larger scale. The applicants sought an order rescinding all licences on their land and the restitution of their title. They claimed that the state infringed on their right to development by not allowing them to decide their development priorities and participate in development planning and administration. The ACtHPR found that by evicting the Ogiek people from their land and not involving them in economic and social programmes, the state violated Article 22 of the Charter.Footnote 38 The Court ordered Kenya to compensate the applicants and take remedial actions.Footnote 39
The ACtHPR requires states to file a status report stating measures taken to implement the Court’s judgment within 12 months. The Kenyan government did not file a status report confirming compliance with the decision on reparations by the June 2023 deadline.Footnote 40 Instead, the government continues to violate Ogiek peoples’ rights. In October 2023, the Ogiek Peoples Development Programme published a statement stating the government ordered them to vacate their ancestral land immediately.Footnote 41 Over 700 Ogiek people of the Mau Forest have been homeless since they were forcefully removed from their land.Footnote 42 Kenya Forest Services claimed that the Ogiek people were evicted to conserve the forest, but the government allocated the land to third parties for commercial logging.Footnote 43
The African Commission and ACtHPR have confirmed the justiciability of the right to development and clarified states’ obligations within the context of resource development. They buttress states’ duty to consult local communities, in good faith, regarding investment or developments on their lands. Notably, the ACtHPR, in the Ogiek case, confirmed communities’ right to ‘give or withhold their free, prior and informed consent, with regards to development, conservation or investment projects’ on their ancestral land.Footnote 44 The ACtHPR pushed the envelope by applying Article 23 of the United Nations Declaration on the Rights of Indigenous PeoplesFootnote 45 and confirming that the Ogiek people have the right to free, prior and consent. This decision brings to the fore the question of communities that qualify as indigenous in Africa. I do not engage the applicability of the concept of indigenous peoples within the African context. However, it is noteworthy that African states have long resisted the recognition of groups as indigenous.Footnote 46 African scholars and the human rights system significantly influenced the recognition and globalisation of the right to development, but the right remains a mirage to many local communities.
B. Right to satisfactory environment
Recognising the nexus between human rights and the environment, the African human rights system established the first justiciable right to the environment.Footnote 47 Africa’s pioneering articulation of an environmental right in the Charter was met with scepticism. Some argued that the right was Africa’s ploy to advance claims against the Global North for wealth redistribution.Footnote 48 The right was questioned on various grounds, including its vagueness and unnecessity, the impossibility of determining its content and the impracticality of its enforcement.Footnote 49 Regardless, Africa’s recognition of the right to the environment in a binding legal document shaped global environmental rights advocacy and the development of international environmental law.Footnote 50 Environmental protection provisions or the right to a healthy environment have since found expression in various international and domestic instruments, including national constitutions.Footnote 51
The Charter provides that ‘all peoples shall have the right to a general satisfactory environment favourable to their development.’Footnote 52 This provision creates a salient normative nexus between the right to a satisfactory environment and the right to development. Hence, the right to a satisfactory environment must be interpreted against the backdrop of peoples’ right to development. Different modifiers depict environmental quality, including clean, healthy, healthful, decent, viable and satisfactory. Article 24 is further complicated by the interlinkage of environmental rights to peoples’ development. To understand the scope of Article 24, the nuanced meaning of ‘general satisfactory environment’ and an environment favourable to peoples’ development must be determined. Environmental rights are fraught with definitional challenges, and the precise meaning of satisfactory or healthy remains unclear.
Ambiguities in human rights instruments are not novel,Footnote 53 and the literature is unsettled on the implications of unclear terms.Footnote 54 These uncertainties do not necessarily hinder the implementation of human rights norms, as those words are subject to judicial interpretations. As Ammann observes, ‘we often disagree about the meaning of texts, the ambiguity of which can be deliberate or fortuitous. Yet legal texts are not radically indeterminate. They are embedded in our social communicative practices’.Footnote 55 The ambivalence about the modifiers for appropriate environmental standards does not diminish the expectations for governments or corporations not to cause harm to the environment or hinder people’s enjoyment of a healthy environment. Moreover, judicial, quasi-judicial and regulatory agencies are crucial in clarifying and applying legal instruments within different contexts.
The African Commission’s seminal decision in Social and Economic Rights Action Centre (SERAC) and Anor. v Nigeria (SERAC) helped breathe life into the texts of Article 24 of the Charter.Footnote 56 In this case, the applicants alleged that the oil leaks and hazardous waste disposal from the Nigerian National Petroleum Company’s operations in the Ogoni territory contaminated their water, soil and air, which resulted in environmental degradation and health challenges. They claimed that the Nigerian military government violated their rights, including the rights to life, health and a clean environment, as affirmed under Articles 4, 16 and 24 of the Charter, by neglecting to enforce standard safety measures and conniving with oil companies to perpetuate human rights abuses.Footnote 57 The African Commission held that Article 24 of the Charter ‘requires the state to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources’.Footnote 58 The Commission stressed states’ duty to take positive actions to protect their citizens’ rights and ensure that private actors, particularly oil companies, do not interfere with the enjoyment of rights.Footnote 59 It condemned the Nigerian government for allowing extractive operations to have catastrophic impacts on Ogoni communities’ well-being and for failing to meet the minimum standards expected of states—prevention of environmental degradation, preservation of communities’ rights, environmental impact assessment, appropriate environmental monitoring and opportunities for members of the communities to participate in decision-making. Particularly, the Commission held that states have the duty to take positive measures to ensure corporations do not infringe upon local communities’ rights. The African Commission concluded that the Nigerian government breached Article 24 of the Charter and urged the government to protect the environment, health and well-being of the Ogoni communities.
The SERAC case provides an important explanation of the scope of Article 24 rights. The case confirms the connection between the right to a satisfactory environment and the right to physical and mental health.Footnote 60 It introduces the right to health to the normative nexus between the right to a satisfactory environment and the right to development. The SERAC case establishes the justiciability of environmental rights and other rights in the Charter. The African Commission stressed that ‘there is no right in the African Charter that cannot be made effective’.Footnote 61 This reaffirms local communities’ right to seek remedies within the African human rights system, especially when redress is unattainable within their domestic judicial system.Footnote 62
The Nigerian government did not fully implement the Commission’s recommendations. They claimed it had commenced the remediation process through the Hydrocarbon Pollution Remediation Project, but the project was not in response to the African Commission’s recommendations. It was initiated about 16 years after the SERAC case decision,Footnote 63 further to the UN Environment Programme report and recommendations on the immediate cleanup of Ogoniland and human rights redress after a field visit revealed gross water contamination, environmental degradation and human rights abuses in the communities.Footnote 64 The remediation project resulted in the cleanup of a few polluted areas and partial compliance with the African Commission’s recommendations.Footnote 65
Like in the IHRDA and Ogiek cases, the African Commission’s recommendations in the SERAC case were not executed within the specified timeline, and the Ogoni communities had no remedy for the human rights violations. Unimplemented supranational judicial and quasi-judicial recommendations are usual outcomes for local communities seeking redress for human rights violations. Communities often collaborate with civil society to seek recourse, but are confronted with procedural or administrative gridlock. As demonstrated in the three cases discussed, the state and MNCs are berated for infringing on local communities’ rights and directed to remedy the wrong, but they flagrantly ignore the decision without repercussions, thereby leaving local communities further victimised.
To improve its human rights oversight, the African Commission directed the Working Group on Extractive Industries, Human Rights and Environment in Africa (WGEI) to provide a detailed explanation of ‘State Periodic Reporting Guidelines on Articles 21 and 24 of the African Charter’.Footnote 66 The African Commission adopted the State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter (State Reporting Guidelines), submitted by the WGEI in May 2018.Footnote 67 The State Reporting Guidelines draw from the SERAC case and explicate uncertainties on Article 24 rights, with a focus on state reporting duties relating to resource extraction operations and their impact on the environment and human rights. They underscore that acknowledging ‘the importance of a clean and safe environment to the quality of life of people’ is foundational to the right to a general satisfactory environment.Footnote 68 The definition section of the guidelines does not include the meaning of the knotty phrase ‘general satisfactory environment’, but the Commission explains that ‘what is guaranteed under Article 24 is not the right to an ideal environment that is completely unaffected or completely clean. It is rather an environment that is clean enough for a safe and secure life and development of individuals and people’.Footnote 69 The guidelines outline the required standards for actualising environmental rights, confirm states as the primary duty holders in protecting environmental rights and spell out the corollary state obligations. Importantly, the guidelines recognise corporations, especially MNCs, as having legal obligations towards right holders and specify their duties under the African Charter.Footnote 70
The African human rights system has been instrumental in explicating and promoting the rights guaranteed in the African Charter. The African Commission and ACtHPR have established the normative significance of the right to development and a satisfactory environment, but the human rights system continues to struggle with holding states and extractive MNCs accountable. It has been over 35 years since African states collectively adopted the Charter. History shows that these same states have effectively undermined the Charter’s legitimacy by failing to fulfil their responsibilities to protect human rights, especially during resource extraction. Despite groundbreaking jurisprudence on the rights to development and a healthy environment, MNCs have continued to conduct reckless extractive operations across Africa, with environmental and human rights consequences for local communities. Yet, at the international level, businesses staunchly opposed regulatory mechanisms attempting to articulate their human rights obligations or create pathways to hold them legally accountable. The International Chamber of Commerce (ICC) argued that a BHR treaty with broad human rights standards and remedial measures would amount to undesirable legal risk for MNCs.Footnote 71 Instead, business representatives welcomed the UNGPs, expressing strong support for a multi-stakeholder dialogue and information disclosure, but opposed monitoring strategies with a ‘complaints-receiving mandate’.Footnote 72 Although a strand of the foreign direct investment literature finds that institutional and governance reliability promote long-term profitability,Footnote 73 Africa continues to attract record-high foreign investment in extractive sectors. The accountability gaps in international law, coupled with African governments’ failure to enforce human rights standards, enable extractive MNCs to shift the social and environmental costs of their operations onto host communities. Despite the setbacks with enforcing Charter rights, the AU continues to facilitate normative initiatives with significant implications for BHR.
III. Evolving business and human rights initiatives
The last three decades witnessed the development of a body of BHR scholarship exploring policy options for addressing the regulatory loophole in international law. The Nestlé baby formula deaths,Footnote 74 Bhopal gas tragedyFootnote 75 and Ogoni-Nine executionFootnote 76 are haunting incidents that intensified global scrutiny of corporations and sparked international discussions about corporate human rights responsibilities, leading to the United Nations’ first attempt to develop a binding legal framework to regulate MNCs.Footnote 77 Much of the BHR scholarship engages the unresolved contestations between the effectiveness of voluntary initiatives and the necessity of a mandatory transnational normative framework.Footnote 78 As the international community grapples with devising binding corporate regulatory frameworks that could fit within foundational international law principles and pass the scrutiny of powerful business enterprises and their home countries,Footnote 79 voluntary commitments are pragmatic options that could form the foundation of a binding regulatory regime over time.Footnote 80
The UN Guiding Principles on Business and Human Rights (UNGPs) marked a turning point in the BHR field.Footnote 81 The UNGPs are international soft law standards that have brought corporate human rights issues to the fore of international law discourse. There are divergent conclusions on the effectiveness of the UNGPs in resolving the longstanding challenge of enforcing corporations’ human rights responsibilities.Footnote 82 Nevertheless, the international discussions that preceded the UNGPs and the unanimous endorsement of the principles by the UN Human Rights Council brought unprecedented attention to human rights in business.Footnote 83 Since the endorsement of the UNGPs, the calls for a binding international instrument have intensified.Footnote 84 The Open-Ended Intergovernmental Working Group’s BHR treaty aims to harden business and human rights norms.Footnote 85 The Global Campaign on the Third Revised Draft of the Binding Treaty commented that the current draft would not close the existing legal gaps that MNCs exploit to infringe on human rights. They propose that more advanced and ambitious provisions are required to ensure the success of the treaty.Footnote 86
While the treaty is still in the pipeline and considered inadequate to close the existing business regulatory gaps, African states have long moved beyond voluntary business human rights responsibilities.Footnote 87 Africa led the way, albeit on paper, by creating a legal system that foregrounds human rights protection in resource extraction. Beyond the growing jurisprudence on Charter rights, numerous initiatives espousing responsible business operations, corporate accountability and sustainable investment have emerged across the continent. For instance, the non-binding Pan African Investment Code outlines investors’ obligations, including the duty to respect labour rights and socio-cultural values.Footnote 88 The Code prohibits investors from exploiting natural resources to the disadvantage of the host state and mandates that they ‘respect rights of local populations, and avoid land grabbing’.Footnote 89 The AU has since facilitated the creation of the largest free trade area comprising most of Africa.
The AU African Continental Free Trade Area (AfCFTA) aims to create a single market for goods and services across participating African states. It seeks to liberalise the African market, eliminate tariffs and other trade barriers and promote deeper economic integration.Footnote 90 The AfCFTA Investment Protocol, adopted by the AU’s Assembly of Heads of State and Government, seeks to streamline intra-African investment governance by establishing uniform standards for states and investors.Footnote 91 It sets out investors’ obligations, which include compliance with human rights and labour standards, protection of recognised international human rights, non-complicity in human rights violations, respect for the right to a healthy environment and respect for the rights and dignity of local communities. The Protocol’s functions are threefold. It moves beyond investment protection to articulate investor obligations to comply with domestic and international human rights, labour, environmental and social standards; supports host states’ regulatory autonomy to protect public interests and sustainable development; and advances institutional coordination and transparency.Footnote 92 Although the AfCFTA is not designed as a human rights framework, it creates an opportunity for integrating human rights standards into trade regimes with economic repercussions.Footnote 93 More so, Protocol provides a continent-wide framework for states to better align investment governance with BHR expectations, but its effectiveness will depend on ratification and domestic implementation.Footnote 94
In addition to the collection of national, bilateral and regional normative frameworks that guarantee human rights and prescribe states’ and corporations’ corollary responsibilities, the AU is in the process of developing a non-binding Policy Framework on Business and Human Rights (‘BHR Policy’ or ‘Policy’).Footnote 95 During the first African Forum on BHR in September 2014, Addo rightly commented, ‘Amid rapid economic growth and new investments in land and natural resources, there is an increasing awareness of why human rights must be brought into business strategies and operations’.Footnote 96 After stakeholder consultations and investigations, the first draft of the AU BHR Policy was created on the foundations of the UNGPs and taking into account the realities of BHR in Africa.Footnote 97 The two main objectives of the draft BHR Policy are to promote ‘a culture of corporate human rights compliance’ and to ‘serve as a tool for states in the development of national action plans on [BHR]’.Footnote 98 The AU suggested that the draft BHR Policy was in its final stage and would be adopted in 2022.Footnote 99 However, as of mid-2024, the AU has yet to provide any status update. The African Commission called upon the AU to update and finalise the BHR Policy and other soft law instruments and address member states’ lacking implementation of their obligations relating to BHR under the Charter and related soft law.Footnote 100
Africa has been on the frontline of developing human rights and investment initiatives. As Africa continues to attract foreign investments in extractive sectors, the Policy is a timely normative instrument that can help mainstream a rights-based approach to resource extraction and bridge the subsisting regulatory gap. It emphasises the importance of human rights due diligence in business operations and sets out essential guidelines for attaining a responsible business and human rights culture in the region. The BHR Policy reflects the normative prescriptions of the African Charter and presents an opportunity for African governments to further commit to addressing business-related human rights challenges. Despite numerous human rights and investment initiatives, the enduring human rights and environmental problems resulting from resource extraction accentuate the need for a coherent and holistic BHR framework.
IV. Barriers to human rights accountability in Africa’s extractive sector
The normative value of regional instruments depends on their relevance at the national level and the extent to which they can shape actors’ behaviour. The effectiveness of non-binding human rights instruments is debatable, but the hardness of a legal norm is not the only factor that informs states’ compliance. Regional and multilateral investment instruments among African nations reflect hard and soft normative standards,Footnote 101 but governments have not been forthright in complying with these mechanisms, regardless of their legal nature.Footnote 102 Before the ACtHPR was established, Viljoen and Louw foretold that ‘the mere fact that the Court will provide legally binding and specific remedies and better formulated judgments will not in itself guarantee improved state compliance’.Footnote 103 Likewise, the effectiveness of BHR and investment initiatives depends on states’ political will and comprehensive compliance and monitoring strategies to ensure compliance.
The drafters of the African Charter acknowledged the need for a mechanism to hold states accountable for human rights violations, but they were cautious of African leaders’ keen protection of state sovereignty.Footnote 104 States were averse to risking their sovereignty or submitting to a regional judicial system, so the drafters settled for a quasi-judicial body instead of a court. The African Commission was established to promote and protect human and peoples’ rights and interpret the African Charter.Footnote 105 As a quasi-judicial body, the African Commission issues legally non-binding findings and recommendations without the power to enforce state compliance. Its toothless chastisement creates a wedge in local communities’ efforts to obtain remedies. Even the Commission recognises that states’ non-compliance with its recommendations significantly erodes its reliability.Footnote 106
The African Commission adopted the revised Rules of Procedure in March 2020, incorporating practices that have developed over time, such as expectations on state compliance.Footnote 107 Rule 125 of the Rules of Procedure outlines the Commission’s follow-up procedure. States have 180 days to submit their implementation report to the Commission, and the Commission may request more information on actions taken in response to its decision within 90 days.Footnote 108 So far, the revised rules have not swayed state practice as the Commission still struggles with obtaining implementation reports or ensuring state compliance.Footnote 109 The Commission cannot achieve its mandates if its recommendations carry little or no weight. States’ nonconformity is not only an affront to the institution but undermines the African human rights system.
The African Commission’s ineffectiveness accentuated the need for a human rights court. Human rights non-governmental organisations (NGOs), African and international human rights bodies and even the African Commission persisted in their calls for a court within the African human rights system to address the Commission’s inadequacies.Footnote 110 The ACtHPR was established by the Protocol to the African Charter on Human and Peoples’ Rights (Protocol), adopted by the OAU Member States in June 1998.Footnote 111 The ACtHPR is an important addition to the African human rights system, but states insisted on conditions restricting non-state claimants’ locus standi. Individuals and NGOs with observer status can only initiate cases before the Court if the respondent state has ratified the Protocol and accepted the Court’s jurisdiction on cases from those claimants (Article 34(6) declaration).Footnote 112 Only 12 countries have signed the Article 34(6) declaration, and four have withdrawn their declaration.Footnote 113 The ACtHPR summarised the status of state implementation of the court’s judgment in its 2022 report.
Regrettably, most of the Court’s judgments were not implemented or adequately complied with Burkina Faso is an outlier with a compliance record.Footnote 114 Tanzania also has a record of complying partially with the Court’s judgment.Footnote 115 Tanzania had the highest number of cases filed by NGOs and individuals before the ACtHPR, and some of the Court’s decisions had socio-political implications domestically.Footnote 116 In November 2019, Tanzania withdrew its Article 34(6) declaration,Footnote 117 which suggests a deliberate tactic to block individuals and NGOs from instituting actions against the state before the ACtHPR.Footnote 118
African governments have managed to maintain the non-compliance pattern of the African Commission in the ACtHPR. States’ disregard for the ACtHPR’s decisions and withdrawals from the Article 34(6) declaration erodes the Court’s legitimacy. The restrictive access to the ACtHPR, states’ power to approve or retract citizens’ access to the Court, and copious non-executed judgments create a practical and symbolic obstruction to human rights redress in Africa. In effect, this attitude weakens the practical influence of the ACtHPR, making it difficult for local communities and victims to trust the Court to actualise its objective of holding human rights violators accountable. Unlike the African Commission’s non-binding recommendations, the ACtHPR issues appropriate orders for human rights infringements, including compensation.Footnote 119 Although state parties to the Protocol agreed to comply with the Court’s decisions and ensure implementation within the specified timeline,Footnote 120 states’ compliance is voluntary. The Protocol does not stipulate measures for compelling state compliance. The Council of Ministers is required to monitor states’ implementation of the Court’s decisions,Footnote 121 but there is no mention of the applicable sanctions for states’ failure to comply or implement the Court’s decision. With the Council of Ministers comprising ministers of foreign affairs from AU member states, monitoring state compliance could become political.Footnote 122
The ACtHPR and African Commission cannot protect human rights without a specialised body monitoring implementation; this is a crucial part of the implementation phase. The lack of a coherent and effective implementation, monitoring and reporting process compounds the human rights system’s shortcomings. African governments have demonstrated a perceptible political unwillingness to execute the decisions of supranational judicial and quasi-judicial bodies or impose penalties on defaulting states. For instance, pursuant to Article 31 of the Protocol, the ACtHPR adopted an Interim Report informing the AU Executive Council about Libya’s failure to comply with the Court’s judgment.Footnote 123 The Court called on the AU Assembly to take steps to ensure Libya’s compliance. The Assembly ignored the Court’s request and did not implement any measures to pressure Libya to comply. Thus, even when acting collectively, states are reluctant to propel compliance.
States can regulate business activities within their jurisdiction, but factors such as resource-related corruption, democratic backsliding, unstable political landscape, prioritisation of natural resources over human rights and over-reliance on natural resource revenue reinforce corporate impunity and frustrate efforts to hold extractive MNCs responsible for human rights abuses in Africa.Footnote 124 Moreover, the nature of extractive MNCs’ operations and corporate structure makes it difficult for human rights victims to hold them accountable. Even in a rights-conscious clime, MNCs’ ability to create subsidiaries legally independent from their parent company, operate across diverse territories and transfer or disperse revenue between different jurisdictions makes it challenging for a (home or host) state to have overarching oversight over their activities.Footnote 125
MNCs’ economic and political influence has sustained their impetuous operations in Africa. They contributed an average of 30 per cent of world GDP in the last decade and generated turnover that exceeds the budget of some states.Footnote 126 Economically weak or politically unstable African states cannot feasibly hold corporations with such influence and complex structure accountable without the support of a binding international law delineating the human rights obligations of home states and MNCs. African local communities have sought recourse in extractive MNCs’ home states or other jurisdictions for business-related human rights abuses, but many of those cases are stalled on procedural grounds.Footnote 127
The procedural uncertainties of seeking remedies in other jurisdictions impose an unfair burden on victims. For instance, the US Alien Tort Claims Act (ATC) allows individuals to institute actions against corporations for extraterritorial activities under international human rights standards.Footnote 128 Yet, in the Kiobel case,Footnote 129 the US argued in support of a ‘presumption against extraterritoriality for international-law-based causes of action under the ATC’.Footnote 130 Indeed, home states have not been forthright in their commitment to tackling the BHR accountability gap.Footnote 131 A legally binding BHR treaty and an international judicial forum with clear procedural rules on extraterritorial claims may mitigate some barriers to access to justice for host communities. Nevertheless, Africa cannot afford to predicate accountability on unreliable home states or on the procedural contingencies of foreign courts. Given the AU’s robust human rights regime and budding BHRs initiatives, the urgent task is to strengthen implementation and enforcement of mechanisms that translate existing norms into effective, locally accessible remedies in the extractive sector.
V. Towards enforcing human rights standards in the extractive industry
Africa’s comprehensive human rights and investment frameworks, including legally binding regional instruments that prohibit business activities with potential deleterious implications for human rights enjoyment, have not prevented human rights violations in the extractive sector. States’ failure to protect local communities’ rights and implement judicial and quasi-judicial recommendations questions the sincerity of their commitment to human rights initiatives. The multifarious—economic, political, legal, administrative—obstacles that prevent local communities from holding extractive MNCs accountable for violating their Charter-protected rights highlight the flaws in the human rights system’s implementation and accountability strategies. In this section, I recommend strategies to close or narrow the accountability gap in natural resource extraction in Africa, from the most promising to the least predictable. Domestication integrates regional BHR legal initiatives into a binding domestic regime and has the potential to institutionalise monitoring and compliance, rather than relying on sporadic political commitment. The other strategies will strengthen oversight, translate voluntary human rights commitments to enforceable obligations and advance accountability and responsible business practices.
A. Domestication of the BHR policy
When people know their rights, they are better positioned to protect them and seek redress when violated. The BHR Policy tailored for Africa could help with the judicial interpretation of existing international and regional human rights and investment laws in holding corporations accountable. While I do not discount the necessity of a legally binding international BHR instrument in closing the accountability gap in the extractive industry, I recognise the value of soft norms, such as the BHR Policy, in fostering a socially responsible business climate. The Policy will clarify the expected human rights culture in resource extraction and help local communities and civil organisations better strategise and direct their efforts towards rights protection. AU member states must take further steps than just adopting the Policy to avoid reinventing the wheel. The effectiveness of the BHR Policy depends significantly on its implementation, monitoring and evaluation stages. State parties should be obliged to incorporate the Policy into their domestic legal system, with a commitment to develop national action plans within a specified timeline.Footnote 132 Periodic progress reports on national action plans are imperative for implementing BHR standards. Clear implementation expectations, a measurable evaluation approach and multi-stakeholder participation in implementing, monitoring and assessing the national action plans are critical for holding states and extractive MNCs accountable.
B. Tripartite contract
Tripartite contracts in resource extraction are project-specific agreements among states, corporations and local communities that stipulate the roles and responsibilities of parties.Footnote 133 They convert MNCs’ voluntary social responsibility into enforceable contractual duties and clarify the scope of each party’s rights and obligations. Tripartite contracts align with the multi-stakeholder approach. As an offshoot of the human rights-based approach to development, this framework centers all decision-making around the recognition of and respect for human rights.Footnote 134 Meaningful participation of social actors, such as local communities, is fundamental to attaining development goals,Footnote 135 hence the interrelationship between effective participation and development. In this context, participation goes beyond an instrument for obtaining public acceptance of a policy; participation is a right that must be respected.Footnote 136 A tripartite contract framework, therefore, shifts away from top-down approaches in which government agencies and investors, often far removed from local communities’ daily realities, formulate policies and execute projects without adequate community input. These contracts acknowledge local communities as primary actors in resource management and create space to incorporate their perspectives and interests.
The essential components of tripartite contracts are the remedial and dispute settlement clauses.Footnote 137 Contractual instruments can create enforceable remedial and dispute settlement mechanisms. Dispute resolution clauses may set out staged resolution processes beginning with non-adversarial resolution through good-faith negotiations or mediation before proceeding to arbitration or court. Failure to comply with the terms of a multi-stakeholder contract may result in a party losing rights under the same instrument. African governments have cited investors’ non-compliance with investment agreement terms to revoke their mining licences.Footnote 138
I propose tripartite contracts as additional mechanisms for closing the governance gap in resource extraction on the backdrop of the following considerations: recognition of local communities as primary actors in resource management, the need to counteract lopsided investment treaties and state-investor agreements, the restrictive scope of community development agreements (CDAs) and limitations surrounding the enforceability of investment contracts.Footnote 139 I proceed on two premises. First, contractual approaches supplement, and do not replace, other human rights and investment standards. Secondly, the state remains primarily responsible for promoting human rights and developing legal and institutional frameworks to protect them.
Furthermore, tripartite contracts can help address an aspect of the accountability gap in Africa’s extractive sector. That is, the persistent distance between human rights principles and project-level practices, particularly where communities remain marginal to decision-making. Local communities across the globe have clamoured for involvement in economic developments that impact them.Footnote 140 Yet government consultation processes and community development agreements (CDAs) adopted by states and corporations, respectively, have often proven ineffective due to their restrictive scope and top-down approach. In alignment with the multi-stakeholder approach, tripartite contracts address these limitations by recognizing local communities’ right to participate in extractive projects and creating an opportunity to integrate their concerns into the project’s governing framework. They also hold the promise of demystifying MNCs’ human rights obligations and social expectations by translating general standards into defined project contractual terms.
A central value of tripartite contracts is that they can specify responsibilities in ways that shift MNCs’ human rights responsibilities under voluntary international standards into contractual obligations that parties can enforce through binding arbitration or other dispute-resolution mechanisms specified in the agreement.Footnote 141 Tripartite contracts can also address a broad range of issues negotiated to protect parties’ interests. They are not limited to reactive measures to remediate projects’ adverse impact, but can also include preventive and mitigating provisions. For example, local communities may negotiate a project-monitoring clause to establish proactive measures aimed at preventing rights infringement.Footnote 142 However, enforcement mechanisms vary across different agreements. Host communities may experience gridlock in holding MNCs liable for breach of contract terms where remedial and dispute-resolution clauses are ambiguous or include ousting clauses. To ensure local communities have access to remedies, parties must include clear, workable enforcement provisions, particularly a specified forum within the host state (or region), that allow disputes to be resolved without prohibitive cost or delay.
C. Independent BHR rapporteur
The AU needs to develop a functional and specialised BHR monitoring and enforcement agency with an independent rapporteur. The specialised agency would facilitate local communities’ awareness of their rights under BHR initiatives, help them navigate adjudicative processes and follow up on state compliance with judicial and quasi-judicial decisions. The agency will develop and execute clear and comprehensive processes to ensure states and extractive MNCs fulfil their contractual commitments under tripartite agreements and comply with the BHR Policy and other related investment initiatives. The value of the rapporteur lies not in restating BHR standards, but in operationalising them through systematic monitoring, assessing states’ implementation reports and publicising the results of the agency’s follow-up procedure to increase the reputational and political costs of non-compliance. The agency’s compliance report and publications about state and MNCs’ human rights violations can shame, ridicule or coerce them into compliance.
Discussions around the adoption of the UNGPs, unanimous state endorsement of the principles and BHR advocacy and activism sparked global awareness of corporate social responsibility and brought attention to local communities’ human rights abuses. With increased scrutiny by academics and advocacy groups, MNCs are more conscious of their human rights responsibilities and the consequences of irresponsible business practices. Extractive projects that proceed with communities’ support are more likely to be socially acceptable and sustainable, reducing conflicts and fostering positive relationships. Companies with social licence to operate are more likely to avert resource-related violence and reduce the risk of delays and revenue depletion. Hence, the industry is more inclined to protect its reputation and seek social licence to operate. On the other hand, the publication of implementation or compliance reports can help attract support from the international community to pressure states and MNCs to conform to human rights standards.
D. Judicial activism
Judicial and quasi-judicial interpretations contribute to the legality and realisation of human rights. IHRDA, Ogiek and SERAC cases helped reify Articles 22 and 24 of the Charter. Likewise, judicial pronouncements on human rights and investment initiatives could reify Africa’s constellation of human rights mechanisms within the context of resource management. Civil society, national human rights commissions, transnational human rights organisations and international human rights agencies can help coerce states to respect and protect human rights and comply with judicial decisions. They could raise awareness of publicised ACtHPR and African Commission decisions and their implementation status. States cited as lagging in their human rights obligations risk reputational harm. Reputation chastisement has different implications for states and is more effective for states that revere their human rights reputation. State response to such pressure depends on their human rights consciousness and propensity to protect their reputation. Governments with poor human rights reputations may not be motivated to take positive actions in response to shaming. With the recent trend of weakened constitutionalism and democratic backsliding in some African states,Footnote 143 publicising governments’ non-compliance with human rights standards or decisions may not coerce them to comply, but they risk international retribution from other states.
VI. Conclusion
Africa’s inventive and ambitious human rights regime has significantly influenced the evolution of global human rights norms. While there is much anticipation for a binding Business and Human Rights (BHR) treaty to define corporate human rights obligations, the ongoing violations against local communities in Africa are not simply a result of the absence of binding legal frameworks or investment regulations. The African human rights system has advanced global jurisprudence by introducing and applying innovative norms, particularly through its recognition of the rights to development and a healthy environment, as enshrined in the Charter. The African Commission’s affirmation of the enforceability of all Charter rights in the SERAC case, and the oversight role of the African human rights system, places Africa at the forefront of regional systems. Moreover, African states have taken significant steps to develop instruments that articulate the human rights responsibilities of foreign investors, making these obligations legally binding rather than voluntary.
However, despite Africa’s progressive human rights framework, there remains a significant gap in enforcing these standards within the resource extraction sector. While African governments are vocal in their commitment to human rights and in condemning BHR violations, there is a paradoxical tendency to overlook the irresponsible operations of extractive MNCs that violate these standards. This impunity is often fuelled by governments’ reluctance or inability to hold these corporations accountable and by local communities’ limited access to effective remedies. This article, therefore, intervenes in existing BHR scholarship by shifting attention from international BHR treaty focus and home states’ roles to an implementation-centred account of why regional norms have not advanced human-rights-conscious practices in extractive sectors. It underscores the agency of African states and argues that the primary challenge is not merely the scarcity of legal structures but the governments’ paper commitments to human rights standards, weak enforcement and non-compliance with human rights directives.
In addition to the array of regional, bilateral and international frameworks that protect human rights and define state and corporate responsibilities, the African Union is developing a regional BHR Policy. This Policy holds considerable potential to promote responsible business practices and ensure human rights accountability in resource extraction, provided its implementation, monitoring and enforcement are effective. Ultimately, while extractive MNCs in Africa are legally obligated to respect human rights, the continent urgently needs a robust enforcement mechanism and the political will to hold defaulting enterprises accountable. Multi-party contracts, judicial activism, regional implementation and monitoring structures and national action plans are all viable strategies for realising Africa’s comprehensive legal framework and closing the accountability gap in the extractive industry. The task ahead is to highlight the agency of host communities and explore the roles of host-state civil organisations, particularly trade unions, in advancing BHR normative enforcement. Future work will examine how communal groups and civil organisations can form transnational alliances to increase their leverage and push for the enforcement of Charter rights and the practical implementation of Africa’s emerging BHR initiatives.
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