On 20 January 2022, the UK’s Department for International Trade hosted a virtual summit “aimed at inspiring further UK investment in Africa”.
UK Prime Minister Boris Johnson has spoken of his “ambition for the UK to be Africa’s investment partner of choice.” There’s a strong track record already: between 2010 and 2019, the UK was the fifth largest foreign investor in Africa.
Investment can create jobs, contribute taxes to public budgets and lead to improved infrastructure. However, investment comes with risks and responsibilities. Sectors offering high returns for foreign investors, ranging from agribusiness to mining, tend to rely on either cheap labour or the low-cost extraction of natural resources. These business models carry an inherent risk of human rights and environmental abuse.
Too often, foreign investors have enjoyed the spoils of investment without adequately safeguarding rights and have not been held accountable when human rights and environmental abuses linked to their investments occur.
This lack of accountability is a failure of regulation. The UK is responsible under the UN Guiding Principles on Business and Human Rights for enabling business respect for human rights. Furthermore, the UK has a particular responsibility to many parts of Africa owing to its colonial history. If it is to encourage more sustainable foreign investment, the UK Government should put in place legal mechanisms to ensure its investors assess and mitigate their human rights and environmental risks and are held accountable if abuses do occur. This means passing mandatory human rights and environmental due diligence legislation, as well as considering how the UK’s trade and investment agreements can uphold human rights.
There have been a number of recent legal cases brought against UK companies relating to human rights abuses linked to their investments in Africa. Although these are just the tip of the iceberg, they demonstrate the severity of harm irresponsible investment can bring.
Ethnic violence on tea plantations owned by Unilever
In December 2007, following the outcome of a disputed presidential election, a series of violent attacks took place against Kisii ethnic minority workers living and working on Unilever’s plantation in Kericho, Kenya. At least 11 workers were killed in the attacks and hundreds more were assaulted and subjected to sexual violence. Workers have accused Unilever of failing to protect them from violence: they claim Unilever Kenya’s senior management was aware of the likelihood of violence but failed to increase security to protect them. Furthermore, witnesses and former Unilever managers allege the company’s own staff incited and participated in the attacks.
The victims lost all their possessions during the attacks and say Unilever stopped their wages for six months. Only those who returned to the plantation received compensation - £80 each (equivalent to just one month’s wages) - which workers and civil society organisations have described as inadequate. Survivors are calling on Unilever to compensate them meaningfully for the long-term physical and psychiatric injuries which have left many unable to work more than a decade after the attacks.
In 2018, the UK’s Court of Appeal ruled that Unilever’s London headquarters could not be held liable for the failures of its Kenyan subsidiary. In July 2020, 218 workers filed a complaint with the UN Working Group on Business and Human Rights and the UN Special Rapporteur on Extreme Poverty and Human Rights. The complaint alleges that Unilever breached its commitment to the UN Guiding Principles on Business and Human Rights under which companies have a responsibility to remediate and mitigate adverse human rights impacts to which they have contributed or are directly linked. The complaint is awaiting a response and Unilever have stated it will cooperate fully with any investigation.
Child labour on tobacco farms in Malawi
In December 2020, UK law firm Leigh Day filed a legal claim against British American Tobacco (BAT) and Imperial Brands on behalf of several thousand Malawian tobacco farmers and their families.
The claim alleges that the companies profited from child labour, exploitation and dangerous conditions on tobacco farms in northern Malawi and forced families into debt bondage.According to Leigh Day:
“As BAT and Imperial know, or ought to know, the farmers have no choice but to make their own children work from the age of three just to achieve the output needed to secure a marketable harvest.”
The claim was triggered by a 2018 Guardian investigation into labour exploitation, including child labour and hazardous working conditions, on Malawian tobacco farms growing for export. BAT’s pre-tax profit in 2019 was more than £8.3 billion and Imperial’s pre-tax profit was more than £1.6 billion.
Both companies deny the allegation, but have been unsuccessful in their attempts to have the High Court strike out the case. The case will now proceed to trial.
Glencore accused of toxic spills in Chad
On 10 September 2018, a basin filled with toxic water, a by-product of crude oil production, collapsed at the Badila oilfield in southern Chad, which is owned by the UK mining company Glencore. Eighty-five million litres of wastewater flooded agricultural fields before pouring into the local Nya Pende River. The incident left at least 50 local residents with burns, skin lesions, sickness and diarrhoea after bathing in or using the contaminated river water. Many of those harmed were children, some of whom required hospitalisation. Livestock drinking from the river also died.
More recently, on 21 July 2020, another waste oil spill occurred at the Badila oilfield further contaminating the local environment and the river.
In September 2020, three human rights groups, the London-based Rights and Accountability in Development (RAID) in conjunction with Chadian groups Public Interest Law Centre and Association des Jeunes Tchadiens de la Zone Pétrolière (AJTZP), filed a complaint with the UK's National Contact Point.
Petra diamonds settles with 71 victims of abuses at the hands of security personnel
Between 2009 and 2020, security guards at Williamson Diamond Mine in Tanzania killed seven members of the local community. At least 41 others were assaulted, some of which were left with life-changing injuries. The Williamson Mine is majority-owned by Petra Diamonds, headquartered in Jersey and registered on the London Stock Exchange.
In May 2021, Petra Diamonds signed a £4.3 million settlement with 71 victims of serious human rights abuses by the security guards at Williamson.
According to their lawyers, “the claimants include residents of nearby communities who were shot, beaten, stabbed, assaulted, detained in a filthy and cramped holding cell by the mine’s entrance, and handcuffed to hospital beds by security personnel employed at the mine.”
“I have been waiting a long time for Petra Diamonds to recognise what its operations did to me and fellow members of my community. We hope the company’s practices will change for good and that we will never return to security guards thinking they can just shoot, kill and beat us."George Joseph Bwisige, a local activist.
The NGO RAID said: “Despite years of local activism and widespread reports about the abuses at its Williamson Mine, Petra Diamonds failed to take action…Petra Diamonds should also provide remedy to victims who may not yet have come forward.”
Vedanta settles with Zambian communities over pollution case
In September 2015, community members in rural Zambia filed a lawsuit against Vedanta Resources, accusing the UK-headquartered company of having poisoned water sources and farmland with toxic chemicals from the Nchanga Copper Mine.
The claimants alleged pollution from the mine has destroyed the livelihood of farmers and fishers in nearby villages, while also causing severe health problems for residents using the polluted water for drinking and washing.
After a lengthy legal process, on 19 January 2021 Vedanta agreed to settle the claims, without admission of liability.
Copper, along with cobalt, nickel and lithium, is experiencing increased demand owing to its use in the technology needed to support the energy transition, from electric vehicles to solar panels to wind turbines. The UK will be an especially important market for these minerals, given the UK Government’s plans to ban the sale of new diesel and petrol cars by 2030.
The way forward
The road to justice for communities effected by corporate abuse is long, difficult and expensive. The legal and financial resources required to bring a case before a court or regulator present a huge obstacle for the majority of communities. The case studies presented here are likely to be just the tip of the iceberg; there are thousands of other allegations of abuse which have never been brought to the attention of NGOs or gained the support of lawyers. The continued demand for Africa’s natural resources means these allegations will multiply if unchecked.
All this points to an accountability gap. When allegations of rights abuses surface, the burden of proof falls on the victims to demonstrate that an abuse took place, that the company was aware of the abuse and that the company should be tried via the UK courts. The information required to demonstrate this is unlikely to be in the public domain and may require access to internal company documents and communications. Additionally, the complexity of corporate structures means communities are often not aware of which international companies are behind investments.
This ‘accountability gap’ is the responsibility of governments to solve. The burden of proof should be reversed by placing a duty on companies to assess, monitor and disclose their human rights risks. If an abuse does occur, it should be down to companies to prove they did not cause or contribute to it.
The Business, Human Rights and Environment Act
The UK Government should legislate to ensure companies can be more easily held liable for abuses by passing a law that creates a ‘failure to prevent human rights or environmental harms’ offence. This new law was called for by the UK parliamentary Joint Committee on Human Rights in 2017, and is supported by almost 50 000 members of the public, as well as civil society organisations and businesses. Legislation is already in place in France, Germany and Norway, with other countries and the EU developing their own new laws.
Such a law would build on encouraging recent developments in the UK courts. The case Vedanta Resources Plc v Lungowe held that a UK parent company does, under certain conditions, owe a duty of care to people and communities affected by its overseas subsidiary’s operations and could be held liable for harm. In Okpabi v Shell, a case concerning huge oil spills in Nigeria, the Supreme Court cautioned against striking out a claim against a parent company at the jurisdiction stage. It is too early to assess whether these successes will translate into enhanced access to justice and remedy for victims of corporate abuse. The proposed Business, Human Rights and Environment Act would buttress progress in the courts by formalising a corporate duty to prevent human rights and environmental harms.
Human rights in trade policy
The UK has nine trade agreements in effect with African countries, as well as a further 19 Bilateral Investment Treaties (BITs) in force. These aim to make it easier and cheaper for UK firms to trade with and invest in Africa. But they include no provisions to hold investors accountable for rights and environmental abuses. Indeed, the BITs contain controversial ISDS clauses that allow UK firms to sue African states if government policies threaten their profits – even if those policies are aimed at protecting human rights and environment.
A trade policy that creates opportunities for companies to profit and curtails state power to regulate without ensuring that those companies meet minimum human rights standards is out of step with existing commitments to protect rights. Instead, the UK could insert provisions into its trade and investment agreements that would hold investors accountable. A model for this is the 2016 Morocco-Nigeria Bilateral Investment Treaty. This paves the way for investment between the two countries, but also introduces a corporate accountability mechanism not too dissimilar to the proposed Business, Human Rights and Environment Act. The Treaty requires potential investors to conduct a social impact assessment of their activities. It also creates a mechanism to hold investors liable under civil law for “the acts or decisions made in relation to the investment where such acts or decisions lead to significant damage, personal injuries or loss of life in the host state.”