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‘The African Decade: Shaping the Next 10 years of Business and Human Rights on the Continent.”

ACCA & CHR Side session: Towards a legally binding instrument on business and human rights: An African perspective

Day ‘Zero’: 11 October 2022

The African Coalition for Corporate Accountability (ACCA) and the Business and Human Rights Unit at the Centre for Human Rights, Faculty of Law, University of Pretoria hosted a side session to discuss the Binding Treaty on Business and Human Rights from an African perspective on Day 0 of the first African Business and Human Rights Forum which was held in Accra, Ghana. The session brought together various stakeholders from the continent and beyond, including governments, international and regional organisations, civil society actors, private sector, academics and communities affected by business activities among others.

The objective of the session was to create a platform to interrogate critical issues around the Binding Treaty and analyse how the legally binding instrument can be more relevant to an African context. These issues included; accountability mechanisms in development financing, access to remedy and non-judicial mechanisms, due diligence and community perspectives on the legally binding instrument. 

Participants had the chance to interact with Ms. Pichamon Yeophantong, Vice Chairperson of the Working Group on Business and Human Rights, at the beginning of the session to highlight the shortcomings and difficulties of the UNGP's Roadmap for the Next Decade of Business and Human Rights. The eight action areas and accompanying priority goals of the Working Group were reviewed, and participants had the chance to discuss how these action areas will affect Africa, and suggest the applicability of the Roadmap to the African context.

It was noted that Development Finance Institutions often fail to identify, assess, and mitigate reprisal risks, and as such calls were made for stronger accountability mechanisms for DFIs. In the context of the binding instrument, it should address and provide for transparency and accountability mechanisms that are applicable to institutions such as DFIs that operate on the continent.

The general consensus was that the current draft LBI, (the third revised draft), does not provide for adequate due diligence procedures. With most regions in Africa being high risk areas there is a need for due diligence procedures. The Treaty should provide for constant due diligence processes in every step of the corporate supply chain with continuous impact assessments being at the core of these processes. Participants unilaterally affirmed that mandatory due diligence is key in ensuring responsible business conduct on the continent.

Another topical issue which the session interrogated was that of access to remedies and non-judicial mechanisms in the binding instrument. In this regard, it was noted that there is urgent need for the LBI to provide for practical implementation procedures for access to remedy for past, current and future corporate injustices. Non-judicial mechanisms were also noted as effective ways to seek relief for African communities. Stakeholders were encouraged to educate communities on the various non judicial mechanisms available in their communities in order to ensure access to remedy.

The session highlighted a gap in the draft treaty in so far as protection of victims is concerned, noting that the Binding Treaty should provide a safety framework for victims of corporate abuses to ensure the safety and security of victims who make reports and complaints against corporations. It is important, as noted in the session, to consider community perspectives on the Binding Treaty. A treaty that puts communities at the core of its focus is essential for Africa, and as such must provide for the right to access to information for affected communities and place requirements for continuous engagement between corporations and the communities, they operate in.

At the end of the session, Resolutions from the Southern Africa Binding Treaty Indaba organised by the Centre for Applied Legal Studies (CALS), The Alternative Information and Development Centre (AIDC), and Lawyers for Human Rights (LHR), in July 2022 were shared. This provided insight on the Southern African position on the Binding Treaty while giving an opportunity for participants to benefit from the learnings highlighted in the Southern Africa Binding Treaty Indaba.

The discussions at the side session gave an opportunity for key stakeholders involved to arrive at an African position on the Binding Treaty to assist in contributing meaningfully at the upcoming 8th session of the intergovernmental working group (IGWG) scheduled to take place in Geneva in October 2022.

The session was a resounding success with a participant describing it as an important platform for “various stakeholders to come together to unify and amplify the African voice and ultimately improve the participation of African States in the Binding Treaty processes

ACCA and the Centre for Human Rights are committed to continue engaging with partners across the continent to advance an African voice on the Binding Treaty and support African states throughout all Binding Treaty processes.

ACCA and the Centre for Human Rights are thankful to all the presenters for their time and contributions to the success of the side session.  ACCA also gratefully acknowledges the financial and logistical support of the Swedish International Development Cooperation Agency (SIDA) and the Raoul Wallenberg Institute of Human Rights and Humanitarian Law as well as the institutional support from the Centre and ACCA’s other partner organisations.