Compiled by Obert Bore

Kenya recently hosted the 3rd African Forum on Business and Human Rights (BHR) from 8 to 10 October 2024. The forum brought together stakeholders from African governments, business enterprises and associations, labor organizations, National Human Rights Institutions (NHRIs), human rights actors, think tanks, international organizations, civil society organizations, and communities across Africa. This year’s forum was held under the theme “Promoting Responsible Business Conduct in a Rapidly Changing Context.” Building on the momentum and progress from the 1st and 2nd forums, the objective of the 2024 BHR Forum was to foster policy dialogue and peer-to-peer learning on responsible business conduct (RBC) and explore the human rights implications of the evolving African and global regulatory landscape. The forum aimed to generate crucial insights for adopting robust regulatory and policy frameworks, as well as business models, that promote ethical and sustainable practices. This article reflects on several considerations for African governments, businesses, and civil society actors operating in Africa, and how they can work together to promote RBC

 Growing Momentum on National Action Plans and Regional Initiatives on BHR

Following the adoption of the United Nations Guiding Principles on Business and Human Rights (UNGPs) in 2011 efforts have been made to give life to these principles, especially through the development of National Action Plans (NAPs) on BHR. NAPs are crucial in guiding states’ efforts to internalize the obligations enshrined in the UNGPs and ensuring the systematic application of internationally recognized human rights norms and principles in relation to business activities. Globally, more than 30 countries have developed NAPs on BHR and are working to implement them.

While the overall number of countries adopting NAPs might appear limited, Africa has seen a rise in both national and regional initiatives to adopt laws, regulations, and policies aligned with the UNGPs. Kenya, Uganda, Nigeria, and Liberia have already adopted NAPs on BHR, while others, including Ghana, Mozambique, Morocco, Ethiopia, Tunisia, Zambia, and Tanzania, are in the process of developing theirs. In addition to NAPs, significant strides have been made in raising awareness, promoting multi-stakeholder dialogues, and initiating training programs on BHR across the continent.

For instance, Kenya has gone further by initiating the development of a mandatory human rights due diligence framework, reflecting a growing commitment by some African governments to embed the UNGPs into their domestic legal and policy frameworks. However, more work is needed to encourage other African governments to initiate NAP processes.

At the continental level, the African Union (AU) has also made progress by developing a draft policy on BHR, which is inspired by the UNGPs. This draft policy provides guidance for AU Member States and businesses in protecting and respecting human rights in the context of business activities. Although not yet adopted, the draft policy articulates the duties of states, the responsibilities of businesses, and the imperative for access to effective remedies for adverse business impacts on human rights. The policy, once adopted, could serve as a vital framework for African governments in developing or improving their NAPs.

Extraterritorial Implications of EU Frameworks on RBC

Beyond Africa, other regions have also established frameworks with significant implications for RBC and human rights in Africa. Chief among them is the EU Corporate Sustainability Due Diligence Directive,  (EU CSDDD) which introduces new obligations for companies to address human rights and environmental impacts across their supply chains. This directive requires companies to undertake due diligence to identify, assess, prevent, and remedy human rights violations and environmental harm related to their operations.

Although the EU CSDDD primarily applies to EU companies, is it expected to have  ripple effects across African businesses, especially those supplying products to Europe. Small and medium enterprises in Africa may face increased pressure to comply with EU due diligence standards, which will require them to identify potential human rights risks within their operations and supply chains.

Furthermore, this directive presents both challenges and opportunities for African governments and businesses. On one hand, it could impose additional regulatory burdens on African businesses. On the other hand, it provides an opportunity for African governments to review their regulatory frameworks and align them with global best practices. African governments could benefit from designing mandatory human rights due diligence laws and policies that mirror the EU’s approach.

Furthermore, the EU CSDDD offers opportunities for victims of human rights violations to file civil claims in EU courts, providing enhanced access to justice. This directive will require businesses to engage communities and other stakeholders throughout their supply chains, fostering greater collaboration between EU and African enterprises.

Another recent framework is the human rights due diligence (HRDD) and trade-based regulations such as the European Union (EU) Deforestation Regulation, which requires companies trading in cattle and key commodities (cocoa, coffee, oil palm, rubber, soya, and wood) as well as products derived from these commodities, to conduct human rights and environmental due diligence to ensure the goods do not result from deforestation or breaches of local environmental and social laws.

Lack of Reporting by States under Articles 21 and 24 of the African Charter

The extractive industry, which plays a significant role in many African economies, remains fraught with human rights and environmental issues. In recognition of these challenges, the African Commission established the Working Group on Extractive Industries, the Environment, and Human Rights. One of the group’s key tasks is to monitor state compliance with Articles 21 and 24 of the African Charter on Human and Peoples’ Rights, which cover the rights to natural resource sovereignty and a satisfactory environment.

However, many African states have failed to report on their obligations under these articles. When reports are submitted, they often lack sufficient information on legislative measures or experiences in ensuring the observance of these rights in the context of extractive industries.

In light of these reporting deficiencies, civil society organizations (CSOs) with observer status before the African Commission have an important role to play. CSOs can submit alternative reports that provide independent assessments of governments’ compliance with the Charter, highlight gaps in official reports, and bring attention to the adverse impacts of extractive industries on local communities.

Conclusion and Recommendations

The 3rd African Forum on Business and Human Rights underscored the growing importance of RBC in Africa and the need for stronger regulatory frameworks to address emerging challenges. While some progress has been made, particularly with the development of NAPs and the AU’s draft BHR policy, much remains to be done to ensure that African governments and businesses align with global best practices.

Recommendations:

1. African Governments:
   • Accelerate the development and implementation of NAPs on BHR and consider incorporating mandatory human rights due diligence frameworks, as seen in Kenya and the EU.
   • Strengthen regulatory frameworks to address human rights risks in sectors such as extractive industries, ensuring compliance with Articles 21 and 24 of the African Charter.
   • Facilitate multi-stakeholder dialogues, including marginalized and indigenous communities, to ensure inclusive policy development.
2. Businesses:
   • Engage in proactive due diligence throughout supply chains, especially in light of extraterritorial regulations like the EU CSDDD.
   • Implement robust stakeholder engagement strategies to identify and mitigate human rights and environmental risks.
3. Civil Society:
   • Monitor state compliance with international human rights standards and provide alternative reports to regional bodies such as the African Commission.
   • Support capacity-building initiatives for local communities to understand their rights and engage with businesses on RBC issues.

By working collaboratively, African governments, businesses, and civil society can build a more responsible business environment that respects human rights, promotes sustainability, and fosters long-term economic growth across the continent.