Human Rights and Extractive Industries: Attacking the brand

Africa has a variety of core minerals and metals. Despite the abundance of mineral resources, mining is not having a notable impact in the lives of most Zambian people. Zambian people are instead recipients of mining negative impacts –displacement, social and environmental impact (crack houses, water, soil and air pollution and vegetation destruction), underpaid workers working under bad health and safety conditions. We are also witnessing an increase in social inequalities and wide spread socio-economic deprivation. These human rights abuses are at the core of disputes and confrontations between communities and companies.

There are two arguments on the intersection between Human rights and extractive industries-- the moral and legal arguments. The moral argument is a simple one. It is premised on the understanding that the owners of the resources must be primary beneficiary. When this does not happen it sets in a contradiction of poverty in the mixt of abundant resources which create tension and conflict. In the case of Zambia, where this contraction is visible, it seems fitting for a sovereign people, living in a democratic state, a people that knows its rights and obligations to question this contradiction and ask for redress. Is this happening?

The legal argument suggests that extractive activities that happen with no respect for national legislations, international laws, norms and standards of transparency and accountability and human rights are a source of underdevelopment and poverty.  There are international, regional and national legal instruments that determine how natural resources should be exploited and benefits shared. At the international level, the UN through its resolution 1803, set the principle for the Permanent Sovereignty, which recognises the existence of states sovereignty over their resources. While it affords states wide discretion to dispose of their resources as they see fit, it also prescribes the context within which states must act. It requires states to exercise this sovereignty in the interest of the people. It states “The rights of the people and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and well-being of the people of the state concerned”. This is a permanent sovereignty doctrine which can also be found in the Charter of Economic Rights and Duties of States, passed by the UN General Assembly in 1974 as a centre piece of what came to be called the “New International Order”.  The question becomes, is this happening in Zambia?

There are other international principles that support the respect for human rights in the extraction of resources. These include the International Covenant on Economic, Social, and Cultural Rights (ECOSOC). It stipulates that the “the misuse of a nation’s resources is a violation of human rights, and it obliges states to respect, protect, and fulfil the rights it sets forth.” At the African level, the African Charter on Human and Peoples’ Rights adopted in 1986 ( to which Zambia is a signatory) stipulates in Article 21 that “ All people shall dispose freely of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. In case of spoliation the dispossessed people shall have the right to lawful recovery of its property as well as to an adequate compensation…”  There is also the African Mining Vision. In 2009, the Head of State and Government adopted the African Mining Vision ( AMV). The AMV emphases the need to place mining in the structural transformation of national economies and societies; the primacy given to national democratic sovereignty and control over the exploitation of country’s resources, and determination of the nature of their use; the recognition of the rights of constituencies and their participation in the formulation of mining and broader development policy; and the commitment to building national institutions for the effective realisation of these principles. At the national levels, countries’ legislations prescribe how mineral ought to be extracted.  Most African constitutions recognise states sovereignty over their resources which they govern on behalf of all citizens. Most critical in the protection of human is the inclusion in most African constitutions clauses which refer to extractive industries and human rights. Many constitutions written in the last decade make reference to human rights treaty obligations as well as environmental protection and access to information as basic and essential rights for individuals and communities.  These principles point to one important conclusion-- the interest of commercial contracts signed by mining companies cannot override the interest of the owners of the resources. If this happens, it is within the within the people’s right to take their government and companies to court to ensure that the contradiction is addressed.

From international to regional and national laws, it emerges that the concept of human rights can be looked at from two perspectives. First, as a human entitlement given or allowed by law (national or international); second as customary rights recognised by traditional cultures and common law. Whatever source of these human rights may be, one cardinal point common in both is that they are all meant to uphold the dignity of people and facilitate human development. It is for this reason that Extractive companies, both domestic and international, are required and expected to put in place and implement policies and practices that respect human rights. Equally, governments are equally expected to put in place laws and mechanism to protect human rights and ensure that these are enforced. Unfortunately, most Africans are exploited and dispossessed of their resources by unscrupulous domestic and external investors. the international, regional and national laws, norms and standards aren’t enforced or are simply ignored in most African countries. It is not a coincidence that the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, recently called for a new treaty binding businesses to respect fundamental human rights, and for States and corporations to fully engage with civil society organizations in the context of natural resource exploitation. She said “Corporations play an outsized role in the decision-making processes about exploitation of natural resources. But they are not subject to legally binding human rights obligations.”  She continued and argued that. “It is time to address this issue more robustly; corporations must not escape responsibility to safeguard human rights.” She further called upon States to enact a legally binding human rights instrument that applies to all corporations, regardless of their size or geographical scope.

It is clear in the context where laws and principles exist that human rights abuses by mining companies are a consequence of African weak states lacking in capacity to enforce their own legislations and regulations. Since the state has been given the power to manage these resources in the interest of the people by national legislations and international regulations, failing to do so exposes its weaknesses.  While the occurrence of violation of human rights does of course concern corporate actors, it is a cross cutting issue and concerns regulatory frameworks, the capacity to monitor and enforce, and therefore institutional capacity, issues of participation and policy choices. When a government fails to provide an adequate regulatory framework under which mining companies should operate and respect human rights or fails to enforce its own rules, that state is either in collusion with multinational companies or it is simply cannot govern, as such it should not be re-elected in power. Equally, most multinationals are signatories to most of the international standards and are required by national laws to behave in a particular manner that respects Human rights. For this reason, they should share the blames. If a company claims to be a responsible company it will endeavour to do the right think whether it is being monitored or not.  For mining companies the problem has always been that they put profit first, as opposed to serving the welfare of employees, their families and the communities around the areas they operate in. The behaviour of most mining companies is premised on the manner they secured the business. If a company corrupted its way to secure the mining rights, there is high possibility that it will also flout with human rights, environmental and social responsibilities. It also true that such a company will not treat accordingly its employees; it also true the company will find no harm in engaging in corrupt practices  including tax evasion and illicit financial flows.  This is why the intersection between Human rights and extractive industries must be looked at holistically.

Multinational companies regard welfare of communities as an unnecessary cost, which should be attended to by the state.  We know today that is not necessary true. The process of extracting minerals comes with impacts on the environment and people living in communities within the catchment areas of mining activities. Policies and laws are therefore made to provide rights, obligations and responsibilities for companies, communities and state institutions, for the purposes of managing these impacts. Unfortunately, communities that invariably suffer the impacts of mining both directly and indirectly often lack the capacity to claim their rights especially those that relate to social organization, livelihoods and the environment. Mining, the foundation of African economies remains one area in which negative impacts on the environment and violation of community rights are widespread. Local communities’ complaints include involuntary relocation, resettlement, loss of shelter, loss of income and sources of livelihood, abuse of labour and personal harms sometimes resulting in death. The high prevalence of human rights concerns and violations affirm the ineffectiveness of existing legislations. It is clear that respect for human rights by companies is an important part of their social licence to operate, but the scope of the obligations imposed on them by international human rights law is limited and contentious with the growth of global power and reach of corporations; also, domestic regulation is often quite inadequate to protect human rights from corporate infractions. The issue of human rights violations is therefore not something at the margin or to be “added on” when impacts are considered– or an issue that concerns above all or only mining companies and their CSR strategies. It concerns all stakeholders-- states, extractive companies, communities and civil society.  

Economic growth and human rights

African resource rich countries have been growing at an impressive rate for the past decade. However, this widely trumpeted dramatic economic growth figures have not translated into significant improvement in the living conditions of the vast majority of the people.  Instead, driven primarily by surges in the price of commodities African resource rich countries economic growth has been harvested mainly by the transnational corporations which dominate the extractive sector.  The majority of people in these countries continue to harvest hunger and unemployment accompanied by mining-related environmental disasters, especially in mining communities.  This situation indicates quite clearly that the extraction of minerals in Africa is not in line with national, regional and international legislations, laws, norms and standards which require that these finite resources be managed prudently for the fulfilment the material and social needs and aspirations of present and future generations.  It is clear that economic growth does not automatically reduce poverty, and poverty is not simply an economic problem but also  a political issue. Finding a solution to problems in the extractive industries will have to start with putting in place a capable state with functional institutions. This is a prerequisite and an accompanying component of an extractive sector that can contribute positively to the national economy. Corruption that take away so much from citizens is simply symptomatic a state that is technically incompetent and ineffective, and a leadership that is selfish.

The situation of joblessness, increase poverty and inequality might get worse if the decline in commodity prices continues. The decline will be accompanied, as it has always been, with massive human rights abuses linked to retrenchment, cut in benefits for mine workers, reduction in social investment especially in education and health for mining communities by mining companies. We have already seen many Africa governments retreating under pressure from mining companies on their attempt to adjust the mining tax regime and legislation to advance the interest of their people.  By retreating, these governments are showing their inability to negotiate with mining companies. By failing to set in place a tax regime that can provide equity in the distribution of benefits, African governments are perpetuating conditions for the pillage of the countries’ mineral resources. Most tax regimes are against the African people’s interests, contradicting the very essence of any tax regime which is an instrument in the hand of government to extract revenue necessary to deal with social challenges. It is therefore logical to argue that most African extractive tax regimes are not human rights sensitive.

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This is why it might be important to review key legislation, laws and regulation, including the constitution to improve their coverage and effectiveness.

Role of civil society

Many civil society organisations (national, regional and international) have invested significant and continue to do so in organising communities for self- determination. But it is impossible for civil society organisations to be in each mining community across the continent. The question than becomes what strategy  should civil society put in place to strategically organise ourselves to ensure that this activism does not just target selected communities but all communities, especially those  in proximity of mining activities? But civil society must ask difficult questions. Since it started its advocacy, are companies changing their way of doing business or not? Are governments changing their ways of managing the sector or not?  If the answer is no to these questions, it means the advocacy is not effective yet and it might be necessary to consider changing the strategy. One big weakness civil society has  specially at the country level is fragmentation with each one pursuing its own agenda for various reasons. For this reason civil society is always in competition with each other and in the process undermining the very raison it claims to do what it does.  This is an indictment on civil society. We know by now that neither regulation nor legislation can change the behaviour of mining companies, only affected communities who by standing up against companies’ human rights abuses can make companies to realise that responsible behaviour is the only option and it is a necessity for the protection of their own investment. Civil society must work together to raise the cost of companies when they choose the option of not respecting human rights through naming and shaming them on a large scale reaching their shareholders using every medium of communication it has—populate our website, newspapers, blogs, twitter, face book, Instagram. Most companies that do not respect human rights, they also do not respect the country’s legislation. In fact, when you talk to most companies they do not fear our legislation, what they fear most is communities’ mobilisation and increasing community’s revolts.  Marikana in South Africa has demonstrated that companies do not have the power we thought they had.  Marikana was a clear demonstration of intolerance and arrogance that a company under state protection. 

Extractive Companies are not untouchable

Companies are afraid and powerless in front of an informed and organised community. Since governments are not prepared to enforce the law, regulations and legislation, the responsibility lies at the door step of communities to force them to enforce them.  Civil society and mining communities should not allow these companies to have unfettered power.  Governments across our region have allowed the interests of multinationals to take pre-eminence over the public interest.  Citizens through community mobilisation must reclaim their interests. For those who have danced to Bob Marley tunes would remember the famous tune” Stand up Stand for Rights.” It is a song civil society must take to each  mining community and mining schools as part of the mobilisation against human rights abuses by companies and the absence of the state to enforce its own legislation. For Mining companies, including the countries were they come from, reputation has become paramount. Mining companies, contrary to the time when they disputed their social and environmental responsibility, they know today that these are part of their responsibilities and people, especially mining communities, have created high expectation of them.  Companies know that they are expected to take actions to achieve shared values to a hitherto unprecedented degree.  Where there is clear demonstration that people are not benefiting, it is within the right of those people to express their opposition to natural resource exploitation, even to stop it forcefully if the company and government are not prepared to listen to the voice of the oppressed.

Exposing corrupt relations between companies and politicians

Citizens must also expose corrupt relationship between companies and politicians because most of these companies find cover from politicians.  In our confrontation with companies we have not focussed our attention on governments who have used the coercive power of the state against mining communities and activists, in support of corporation.   Civil society must move away from passive campaign to a more engaging campaign through demonstration, publicity campaigns and direct actions schemes to raise the costs to businesses and governments of continuing with whatever that undermine the rights of communities. In doing this, the objective should be to shape the new terms on which companies must operate.  For civil society to succeed it will need to broaden its alliance to include journalists, mining communities, ordinary people, labour, traditional leaders, churches and schools to speak out against the omnipotence of mining companies and the unreliability of government.  It will not be unpatriotic –or wrong for that matter— when citizens confront their governments including litigating against them when  their rights to benefit from their resources are violated.

Need for more empirical research

Most African governments do not know the extent to which extractive activities are affecting the environment through pollution of air, soil and water, and impacting on the health of the population. They also not know in monetary terms how must this is. May be this is the work civil society might want to move in and ensure that it has data it can use when litigating against companies and putting pressure on governments to pass and enforce tougher environmental laws. In the USA, the toughest laws in the history of the country—the national Environmental Policy Act of 1969, the Clean Air Act in 1970, the Federal Water Pollution Control Amendment in 1972 which was expended to  the Clean Water Act in 1977 )-- were passed following  a revolution against industrial negligence that spread across the land as people grew increasingly concerned about air thick with smog, rivers catching fire, wildlife disappearing, and frightening rise in deadly cancers and once-rare diseases. The national crackdown on pollution hit industries like hurricane, forcing factory clean-ups and, in some cases, plant closures. Why our government cannot do this?  If we want justice we need to do more of the Natural Resource Damage Assessment that would help determine the amount of damage to claim against these companies.

The specific concerns and interests of key domestic socio-economic constituencies should be deepen in the policy and practical documents, and  greater attention must be paid both to raising awareness of the legislation among citizens, as well as the domestic political mobilisation required for the implementation of the legislation.  With regard to communities affected by extractive activities, such policies must be aimed at operationalising such key principles as Prior and Informed Consent and the Polluter Pays.

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