A review of the work of the African Commission’s Working Group on Extractive Industries, Environment and Human Rights Violations in Africa

Author: Miriam Azu
Lawyer, Human Rights Advocate and Environmental Activist

The Working Group on Extractive Industries, Environment and Human Rights Violations in Africa (Working Group) is an oversight mechanism of the African human rights system. Its general mandate is to monitor and report on how extractive activities affect the human rights and environment of the African peoples.[1] This article briefly evaluates what the Working Group has done so far vis-à-vis its mandate, notes some of its challenges and concludes with recommendations on the way forward.

Background to the creation of the Working Group

In 2006, the African Commission on Human and Peoples’ Rights (African Commission) authorised a study into human rights violations in Africa by non-state actors. The aim was to use the report on the study to develop jurisprudence that would form the basis for holding non-state actors accountable for breaching human rights provisions in the African Charter on Human and Peoples’ Rights (African Charter).[2] At the time that the report on the study was submitted for consideration and adoption, the African Commission also received complaints that some groups and private companies operating in the extractive industries in Africa were abusing human rights; and instead of adopting the report on the study, the African Commission revised its terms of reference and commissioned an assessment of the impact of extractive activities on human rights and the environment in Africa. The final report on the study recommended the establishment of the Working Group, which was then established through a resolution of the African Commission.[3]

Mandate of the Working Group

The Working Group ought to be commended for activities that it has embarked upon to discharge certain aspects of its mandate.[4] For example, it has researched specific issues pertaining to the right of Africans to freely dispose of their natural resources within a general, satisfactory environment favourable to their development, including research on human rights violations by non-state actors in Africa. Also, it has gathered, received and exchanged information from, and collaborated with relevant stakeholders. However, as noted below, the Working Group has not performed so well on other aspects of its mandate. For instance, it has failed to inform the African Commission on the possible liability of non-state actors in certain instances of human rights abuses. Also, its reports to the African Commission are not comprehensive.

Activities of the Working Group

In line with its mandate to collaborate with interested stakeholders, the Working Group has formed several strategic alliances.[5] For instance, together with the Legal Resources Centre, the Working Group has developed a draft toolkit on free, prior and informed consent. The significance of the draft toolkit on free, prior and informed consent is that it makes it compulsory for Africans to be consulted and allowed to participate in the development of their natural resources. Also, the Working Group is currently exploring the possibility of collaborating with the Democratic Control of Armed Forces to draft a code of conduct for private security firms that operate in Africa’s extractive sector.[6] The adoption and implementation of such a code may avert atrocities such as the Marikana massacre, when security forces shot and killed 34 striking mineworkers.[7]

Moreover, pursuant to its task to gather and receive information, the Working Group has embarked on research missions and held regional consultations. For example, after the Marikana massacre, the Working Group undertook a mission to South Africa, interacted with some residents and mine workers of the Marikana community and attended a public hearing of the Marikana Commission of Inquiry.[8] There is, however, currently no publicly available information as to whether the Working Group has informed the African Commission about the possible liability of any of the mining companies implicated in the Marikana incident. Moreover, the Working Group has embarked upon a research and information mission to Zambia, and held regional consultations in East and Southern Africa. These platforms have given visibility to the Working Group and have also provided it with the opportunity to engage with stakeholders on various extractive issues that impact human rights and the environment in Africa.

Accomplishments of the Working Group

The Working Group has made some strides in the six years of its existence. First, it has developed a draft toolkit on free, prior and informed consent. The draft toolkit highlights the importance of the active involvement of the African peoples in the development processes that affect their lives, livelihoods and/or environment. If properly implemented, the draft toolkit is a useful mechanism in the sense that it would give the African peoples a place and a voice at the discussion table. It would also prevent the brand of human and environmental rights abuses that are often orchestrated by non-state actors in collusion with governments, such as the ones suffered by the Ogoni people of Nigeria that eventually resulted in the murder of the environmental activist, Ken Saro-Wiwa.[9]

Secondly, and directly linked to the significance of the development of the draft toolkit, the Working Group has contributed to a better understanding of the jurisprudence underlying articles 21 and 24 of the African Charter. The articles respectively provide for the rights of Africans to freely dispose of their natural resources and to a general satisfactory environment that is favourable to their development. By producing the draft toolkit, the Working Group has achieved a number of things. First, it has made consultation, participation and informed consent a necessary part of the extractive development process. Furthermore, it reinforces the normative value of collectivity that is inherent in the concept of peoples’ rights in articles 19 to 24. And finally, as a corollary, it empowers otherwise defenseless individuals who, without the inclusive dictates of the draft toolkit, would have been powerless against the clout of multinational companies.

Finally, the Working Group’s activities have given some visibility to the existence of the Working Group itself, and therefore to the issues it has addressed. Different organisations are involved in tackling various aspects of the impact of the extractive industries on human rights and environmental protection in Africa due to the partnership that the Working Group has created with them since its inception.

Challenges facing the Working Group

This article identifies four main challenges. First, the Working Group is not adequately funded, and so relies primarily on partner organisations to mobilise funding. Indeed, due to financial constraints, the Working Group cancelled its scheduled activities for an entire inter-session period.[10]

Second, the Working Group has encountered great difficulty in securing authorisation from member states of the African Union to conduct country visits. To date, of the countries that the Working Group has planned to visit, Zambia is the only country that has cooperated; Tanzania and the Democratic Republic of Congo have refused to grant authorisation.

Third, scheduling conflicts have also impeded the ability of the Working Group to be efficient. For instance, after Liberia granted authorisation for the Working Group to undertake a country visit, the mission was cancelled because it conflicted with the chairperson’s participation in a Commission on Inquiry to South Sudan.[11]

Finally, there is an informational gap regarding the Working Group’s activities. There is a dearth of publicly available resources about the Working Group’s work. Currently, information about its activities can only be found in its inter-session reports to the African Commission. However, the inter-session reports only highlight the Working Group’s activities, leading to informational gaps about progress and situational updates. As an illustration, it is not clear whether the Working Group has completed several projects, including a mapping of the extractive industries in Africa,[12] a code of conduct for private security companies on respect for human rights,[13] and a regional policy guide on labour rights.[14] Also, the African Commission tasked the Working Group to conduct an in-depth research on the impact of illicit capital flight from the extractive industries on human rights in Africa.[15] But, beyond a note in its inter-session report that it has organised a roundtable discussion on the subject, there is no further information on any progress that the Working Group has made on this project.[16] The fact that the inter-session reports only provide a sketch of the Working Group’s activities is itself a matter that merits some attention at this point. The Working Group is obliged to prepare and submit comprehensive reports to the African Commission.[17] Accordingly, it is submitted that since the inter-session reports are only synoptic, they are not the ‘comprehensive’ report that the Working Group is mandated to be submitting to the African Commission.

Conclusion and recommendations

In order for the Working Group to realise its full potential, certain steps need to be taken. While not attempting to provide an exhaustive list of solutions  to all the possible challenges facing the Working Group, this article nonetheless makes four recommendations. First, the African Commission, in its capacity as the main human rights enforcement mechanism of the African human rights system as well as the creator of the Working Group, should be more proactive and responsible towards it and lead regional and international efforts to raise funds for the Working Group. Second, article 21(5) of the African Charter imposes an obligation upon African countries to prevent the undue exploitation of natural resources by non-state actors. This implies that African governments have a legal duty to cooperate with mechanisms, such as the Working Group, whose work is to ensure that extractive industry players do not violate human rights and the environment. Third, to avoid scheduling conflicts, which impede the Working Group’s efficiency, the African Commission should avoid appointing members of the Working Group as members of other special mechanisms in the African human rights system. Finally, the Working Group should maintain a robust web presence to increase its visibility and make its work and reports publicly and readily available. It could do so by either creating its own website or maintaining a page on the African Commission’s website with links to comprehensive reports, activities, situational updates and progress reports.

[1] For details on the Working Group’s mandate, see n 4 below.

[2] See http://www.achpr.org/mechanisms/extractive-industries/about/ (accessed: 16th December 2015).

[3] As above.

[4] The full details of the Working Group’s mandate are available at http://www.achpr.org/mechanisms/extractive-industries/ (accessed: 17th December 2015).

[5] The inter-session reports of the Working Group show that since its inception, it has partnered with the following organisations on various projects: the African Development Bank, Australian Agency for International Development; Centre for Development and Environment, Cameroun; Centre for Human Rights, South Africa; Democratic Control of Armed Forces, Switzerland; Forest Peoples Programme, UK; Human Rights Development Initiative, South Africa; Institute for Sustainable Development, Liberia; International Service for Human Rights and the Legal Resources Centre, South Africa.

[6] Inter-session report presented at the 56th ordinary session of the African Commission on Human and Peoples’ Rights, para 13, available at http://www.achpr.org/files/sessions/56th/inter-act-reps/227/56os_intersession_report_comm_manirakiza_en.pdf (accessed: 19th October 2015).

[7] http://www.sahistory.org.za/article/timeline-marikana-massacre-2012-2013 (accessed: 18 December 2015).

[8] Inter-session report submitted to the 54th ordinary session of the African Commission on Human and Peoples’ Rights, paras 20-24, available at http://www.achpr.org/sessions/54th/intersession-activity-reports/pacifique-manirakiza/ (accessed: 28th October 2015).

[9] https://ccrjustice.org/home/what-we-do/our-cases/wiwa-et-al-v-royal-dutch-petroleum-et-al (accessed: 4th January 2016).

[10] Report of Chairperson Mumba Malila, presented to the 50th Ordinary Session of the African Commission on Human and Peoples’ Rights in Banjul, The Gambia, available at http://www.achpr.org/sessions/50th/intersession-activity-reports/extractive-industries/ (accessed: 29th October 2015).

[11] Inter-session report presented at the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights in Luanda, Angola, para 13, available at http://www.achpr.org/sessions/55th/intersession-activity-reports/extractive-industries/ (accessed: 27th October 2015).

[12] Report of the Working Group on Extractive Industries, Environment and Human Rights Violations in Africa presented on the occasion of the 25th anniversary of the African Commission on Human and Peoples’ Rights, commemorated as part of the 52nd Ordinary Session of the Commission, para 13, available at http://www.achpr.org/sessions/52nd/intersession-activity-reports/extractive-industries/ (accessed: 28th October 2015).

[13] n 6 above.

[14] Inter-session report presented at the 56th Ordinary Session of the African Commission on Human and Peoples’ Rights, p 13, para 1, available at http://www.achpr.org/files/sessions/56th/inter-act-reps/227/56os_intersession_report_comm_manirakiza_en.pdf (accessed: 19th October 2015). It cannot be overemphasised that the adoption and implantation of such an initiative could preclude labour agitation and prevent the sort of reckless disregard for human life by security agencies that led to the Marikana massacre.

[15] Section V, p 3, 34th Activity Report of the African Commission on Human and Peoples’ Rights, available at http://www.achpr.org/files/activity-reports/34/achpr53eos13_actrep34_2013_eng.pdf (accessed: 19 October 2015). For the full text of the Resolution on Illicit Capital Flight from Africa, see also http://www.achpr.org/sessions/53rd/resolutions/236/ (accessed: 19th October 2015).

[16] Para 26 (n 8 above).

[17] My emphasis.

About the Author:

Miriam Azu is a lawyer, human rights advocate and environmental activist. She holds a Bachelor of Laws degree from the Kwame Nkrumah University of Science and Technology, Ghana, a Master of Laws degree from the University of Pretoria, South Africa, and another Master of Laws degree (cum laude) from Columbia University, New York. Miriam is currently a Columbia Law School Postgraduate Public Interest Law Fellow and Louis B Sohn Fellow at the Washington, D.C. office of the Center for International Environmental Law. She is the author of Lessons from Ghana and Kenya on Why Presidential Election Petitions Usually Fail.