By Stephanie Amoako, Accountability Counsel

Accountability for harm caused by corporate abuses is a challenge all over the world. This includes on the African continent, where billions of dollars are pouring into countries for infrastructure, mining, and other projects. October 2018 marked the fourth annual General Assembly (GA) of the African Coalition for Corporate Accountability (ACCA) took place in Nairobi, Kenya. The ACCA is a coalition of 123 African organizations from 31 African countries. The ACCA seeks to support African communities and individuals whose human rights are adversely impacted daily by the activities of corporations, both multinational and domestic. For the second year in a row, Accountability Counsel participated in the GA, which brought together civil society organizations (CSOs), grassroots advocates, and international partners. During the two-day gathering, we shared our work on independent accountability offices and discussed strategies to hold corporations accountable for harm on the continent.

This year’s GA focused on Free, Prior, and Informed Consent (FPIC). FPIC is a way to articulate and implement indigenous peoples’ inherent rights to self-determination and participation, and is protected under international instruments, including the UN Declaration on the Rights of Indigenous Peoples and ILO Convention 169, as well by national law in some countries. It is also included, in some form, in the standards of some international financial institutions, including the International Finance Corporation’s Performance Standards. Although the precise definition and scope of FPIC is the subject of debate, it entails providing project-affected communities with accessible information about project impacts, both positive and negative, prior to the commencement of the project. It also includes the right to give or deny consent for the project to proceed and provides ongoing input on its implementation. Importantly, this process must be carried out in an environment free of coercion or intimidation. This is particularly necessary given the shrinking space for civil society globally.

While FPIC as a right is triggered by indigenous communities’ unique relationship with their land through historical use or occupation as well as cultural and/or religious practices which create attachment to the land, there is increasing discussion of using FPIC principles and practices when engaging with all communities. In fact, FPIC for all affected communities has been included in some instruments in Africa, including the ECOWAS Directive on the Harmonization of Guiding Principles and Policies in the Mining Sector. In 2012 The African Commission made a resolution on human rights-based approach to natural resources governance: “non-indigenous, project-affected people have the right to consultation and negotiation in decision making processes in ways that are consistent with the principles underlying the right to FPIC”. 

The African Charter on Human and Peoples’ Rights enshrines the right to development to all peoples as well as the right to dispose of their wealth and natural resources. The African Commission has interpreted ‘peoples’ to include non-indigenous communities. If development is to be sustainable on the continent, it is crucial that all communities affected by projects are able to meaningfully engage in the decision-making concerning these projects. An FPIC standard can help ensure affected communities’ voices are respected in the course of projects, although care must be taken to ensure that the focus on FPIC for indigenous peoples is not weakened.

During the 2018 ACCA GA, participants shared their challenges around protecting the rights of communities in the course of projects, including challenges in realizing meaningful community consultation and engagement. One of the keynote speakers, Raya Ahmed of Kenyan organization Save Lamu, shared her community’s opposition to the coal plant being developed in Lamu, which poses serious risks to community health, livelihoods, the environment, and valuable cultural heritage in Lamu, including a UNESCO World Heritage site. Lamu communities have been denied comprehensive information about project impacts along with the opportunity to participate in decision-making regarding the coal plant, as well as other components of the Lamu Port-South Sudan-Ethiopia Transport (LAPSSET) Corridor mega infrastructure project. Accountability Counsel has been assisting Save Lamu in advocacy aimed at the African Development Bank, which is considering supporting the coal plant with a partial risk guarantee, as well as other relevant stakeholders and investors. The experience of communities in Lamu is emblematic of the challenges that communities across Africa have faced when trying to assert their rights to direct development affecting them.

Financial institutions, governments, and project proponents must ensure that communities are properly informed of project impacts as well as respect the desires of project-affected peoples in the project lifespan. Furthermore, it is critical to ensure that remedy is available when communities’ rights are violated, including the right to FPIC. The GA grappled with this issue in detail, with participants sharing their victories and challenges with accessing remedy in forums ranging from domestic courts to multi-stakeholder initiative grievance processes. Challenges include difficulties with gathering comprehensive documentation of harm, lengthy court proceedings, the high cost of litigation, and a lack of enforcement of judgments.

Accountability Counsel works with communities around the world, including in Africa, to bring complaints about harmful projects to accountability offices, including independent accountability offices at international financial institutions. With so many barriers to accessing judicial remedy, including on the African continent, these accountability offices are often welcome alternative forums for securing accountability and remedy for development projects that will negatively impact the lives and livelihoods of communities. We have seen victories using these offices, including in Mongolia and Mexico. However, these offices can also pose challenges for achieving remedy, and we work to ensure that they are accessible, fair, and effective. Because several financial actors lack these mechanisms, we also work to ensure that new mechanisms are created according to best practices.

Despite the challenges posed by protecting communities’ rights and securing accountability when rights are violated, participants at this year’s GA charted a way forward for empowering communities whose lives will be affected by projects in Africa. This includes increasing access to information on projects in the pipeline and assisting communities to meaningfully engage in FPIC and consultation processes. These goals will be achieved through capacity-building training that seeks to enable advocates to bring complaints to judicial and non-judicial mechanisms, including accountability offices, seek changes to harmful projects, and secure remedy for harm caused. Going forward, Accountability Counsel will continue to work with the ACCA and partners across the African continent to ensure that communities are empowered to raise their voices about projects happening on the continent.