Implementing Business and Human Rights Norms in Africa: Law and Policy Interventions

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.

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