There are likely very few African business and human rights (BHR) practitioners who have followed closely recent developments in the emerging EU BHR regulatory landscape. The controversies over the backtracking in respect of the Corporate Sustainability Due Diligence Directive (CSDDD), for example, have not been at the forefront of African minds.
Human rights due diligence is already on the agenda
This is not to say that there is a lack of focus on BHR in Africa, though this applies mainly to large companies. The companies have an awareness, in part because of widespread knowledge of, and demands by CSOs for adherence to, the UNGPs.
Many businesses with African operations report on their adherence to the UNGPs and have been including human rights reports in their suite of annual reports. Mining, as the most impactful sector, has been a central focus.
Of course, the quality of these reports – like the extent of adherence – is variable. But adherence and reports are being asked for. Reports are used by local and international CSOs, often to measure company’s words against their deeds. Where required by Australian and UK regulation, modern slavery reporting has become routine too. But the focus is broader than the UNGPs.
South Africa at the forefront
Where African regulation is concerned, many governments, in response to pressures from their voters, have put in place laws and regulations designed to require large businesses to carry out actions to benefit those societies and particularly the communities in which those businesses are based.
At the forefront was South Africa. Among the measures put in place to address the racial inequalities that were (and largely remain) the legacy of apartheid, government introduced legislation which established a Mining Charter whose targets had to be pursued as a basis for being granted what was called a new order mining right. Targets were negotiated between government, the industry and organised labour. Similar legislation for other sectors of the economy followed, where the leverage applied was qualification to apply for state contracts or operating licence applications where this applied.
These regulations dealt with such matters as education and training to raise skill levels and hence earnings, fair demographic representation and equal opportunities across management and operational levels, ownership opportunities for previously disadvantaged citizens (including women), targets for procurement of goods and services from black-owned businesses, upgrading of company-provided living conditions, and investment in mine community development.
Companies that have been granted mining rights are required to report annually to the Department of Mineral and Petroleum Resources on their adherence to targets and undertakings in respect of all these matters.
Accountability beyond the mining sector
In most African mining jurisdictions, there are regulations and/or other pressures for businesses to prioritise local employment and procurement and to have in place ongoing social investment programmes.
Efforts by companies to cite these positive social investments as a kind of “offset” against the obligation to “do no harm” were attempted earlier on. But it happens far less these days as stakeholder awareness of the UNGPs has increased.
In South Africa and some other jurisdictions, this is in addition to quite strict regulations on environmental management, workplace health and safety and other aspects of corporate sustainability. In addition, in South Africa the constitution with a Bill of Rights protects citizens from adverse actions of the state, business and other institutions. For example, following a lengthy process of litigation, South Africa’s Constitutional Court recently permanently blocked Shell from conducting oil and gas exploration off the country’s Wild Coast. Among the reasons for the decision was a lack of meaningful public consultation with affected coastal communities.
Where industry standards add weight
The other development strengthening respect for human rights by major businesses operating in Africa is the adopting by business organisations of the requirement that membership requires commitments to adherence to the UNGPs and other sustainability guidelines. Usually, these guidelines or standards were developed in consultation with CSOs.
The International Council on Mining and Metals (ICMM) led the way. The Consolidated Mining Standard Initiative has brought together four organisations, including the ICMM, to consolidate their standards, which will apply to many African business operations.
What EU regulation brings to the table
Of course, these voluntary standards cannot be as effective as laws and regulations where breaches carry criminal or civil penalties. Which is why initiatives such as the CSDDD are important. They set a benchmark and point to where the rest of the world will eventually move. And, of course, the more effective the CSDDD content the greater weight it will carry.
By Alan Fine
In his work first at gold mining company AngloGold Ashanti, and then as a consultant to the mining industry, Alan Fine has worked, among other things, with companies on implementing the UNGPs and with the Minerals Council South Africa on developing a Human Rights Framework for implementation by members.
He was previously a journalist for 18 years focused on politics, labour matters and public policy, and before that a trade unionist for eight years.