Africa – Realising Rights

Binding Treaty on Transnational Corporations discussed at the African Commission

On the 6 April 2016, the Legal Resources Centre (LRC) held a side event at the 58th session of the African Commission on Human and Peoples’ Rights in Banjul, The Gambia. The side event discussed the United Nations proposed treaty on transnational corporations and other business enterprises with respect to human rights.

The side event attracted participants from various organisations across Africa. Our panel consisted of three staff members of the LRC and a member of the African Commission’s Working Group on Extractive Industries, Clement Voule. Unfortunately, Nomonde Nyembe from the Centre for Applied Legal Studies was unable to join us as a panellist due to an unanticipated injury.

LRC researcher, Mabatho Molokomme, facilitated the session. She gave a brief background on the Human Rights Council resolution and what it envisages for the treaty. This was followed by a summary of the first open-ended intergovernmental working group (IGWG) session that took place in Geneva, Switzerland in July 2015.

IMG-20160428-WA0002 — The 58th session of the Africa Commission on Human and People’s Rights

Drafting the binding treaty

LRC attorney, Sayi Nindi, spoke about community participation and the drafting process of the binding treaty. Some of the key points she raised are as follows:

The drafting process of the binding treaty is at its preliminary stage and no one knows how the treaty will look like.
The following still need to be determined, amongst other questions: what rights will be covered by the treaty; what companies the treaty should apply to; if the treaty should define in greater detail the content of states’ duties to protect human rights and ensuring access to justice for the affected people.
There are different views on whether corporations should be subjected to international law. Positivists say corporations should not be subjects of international law because no international law instrument recognises them as such. Other flexible interpretations say that corporations may have limited international legal personality. Pragmatists are of the view that the issue of whether corporations are subject to international law (and what legal responsibility can be imposed on them) is irrelevant as clearly corporations have both rights and responsibilities.
The development of this treaty has to be people- and community-centred. Local communities must be empowered to lead and participate in this process. They must bring their experiences to the table.
Communities have to bear the brunt of the so-called “development” that allegedly comes with transnational corporations.
There’s a clear gap in the international human rights law framework in its failure to address human right abuses by transnational corporations. They can now participate in debates and resolutions. This is the perfect opportunity to state the importance of Free, Prior and Informed Consent (FPIC)* and insist on it to be a requirement for developmental projects.
African civil societies should lobby their governments to participate and contribute at the IGWG sessions.

Cases that the LRC are litigating were used to illustrate how the treaty would be beneficial in situations where individuals or communities are victims of human right violations by multinational corporations. There are many examples on the continent where victims of human rights violations perpetuated by multinational corporations are left with no recourse if they solely relied on their domestic laws, which may not be as effective as an international instrument such as the binding treaty.

The LRC have been working with the South African government and we were encouraged that other civil society organisations do the same. The participants were informed of ways in which they can engage with their governments in order to promote the treaty movement at the UN level. A draft letter to be sent to governments was offered to those in attendance.

Right to Development

LRC attorney, Wilmien Wicomb, spoke on Right to Development as enshrined in the African Charter on Human and Peoples’ Rights and Free, Prior and Informed Consent. She raised the following key points:

The question is sometimes raised why we need yet another treaty with so many existing international and soft law instruments. It was noted that the treaty represents an acknowledgement that transnational corporations have become powerful enough as players in international relations and domestically to perform governmental functions; such as delivery of services and contributing to policy and development decisions. As such, the treaty represents a radical departure from existing international human rights law.
If that is the case, a key question that continues to be debated is whether transnational corporations should also be the bearer of international human right’s duties?
To answer this and other difficult questions, it is important to look at the current context. The current resource wave is targeting mainly rural communities – the poorest and furthest away from basic services – in South-South countries: in part because of their insecure and cheap tenure.
She noted that Africa can bring something different to the transnational corporation discussion. The African context has important differences: a different legal context (from, for example, Latin America with International Labour Organisation 169, FPIC entrenched in domestic law); a different history (in particular to indigenous peoples); old and new mining sectors.
From our unique legal context, Africa can contribute the African Charter and its Right to Development as a procedural and a substantive right; real choice with an emphasis on outcome and on community-driven development.
Furthermore, African customary law requires principle of consent, of local decision making, of local living law. Increased recognition of customary law must be utilised to counter common law and business-heavy legal frameworks.

There was a general discussion on why the treaty is not being favoured across the board, given that everyone is aware of human rights violations happening. There was general consensus in the room that the United Nations Guiding Principles on Business and Human Rights (UNGP) are preferred by the home states of the transnational corporations because of their voluntary nature. Much work and negotiation will be required before the treaty can reflect all we hope it will contain.

There was acknowledgement of the high standard of rights as set out in the African Charter. No one will be campaigning for anything less than that standard.

IMG-20160428-WA0004 — Mabatho Molokomme, Sayi Nindi, & Wilmien Wicomb

African participation

Clement Voule spoke on civil society advocacy and mobilisation. He emphasised that there has been marginal participation from Africa in the process thus far. He encouraged people to be a bit more proactive in their involvement in the upcoming IGWG session in October 2016. He noted that the content and its negotiations will take a long time. There may not even be a treaty in the end but this should not deter people from joining the process. He also stated that the treaty conversation should not be kept separate from the UNGP conversation. The treaty must be viewed as the next step in the process and not a replacement of the other. States reaching common ground on the UNGP may be a window of opportunity and a better space to discuss the treaty.

Outcomes

The side event induced a worthwhile conversation and we invite the proposals that were put forward. A participant who works for the African Commission proposed that they could assist us to host a panel discussion at the next African Commission session in November 2016 in order to reach a broader audience. We also made contact with one of the Commissioner’s working with the Working Group on Extractive Industries, who is interested in participating – through the working group – in the work of the binding treaty. The participants at the side event also suggested that this conversation be opened at the African Union Summit.

By: Mabatho Molokomme, Sayi Nindi, and Wilmien Wicom

*Read more about the FPIC principle here: https://za.boell.org/sites/default/files/perspectives_april_2016_web.pdf

The Day Human Rights Became Immoral

On 3 March 2015, the Portfolio Committee for Justice began the public consultation process on the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill 18 of 2014. The Legal Resources Centre attended Parliament and presented oral submissions which were based upon our written submissions of 4 March 2015.

The Amendment Bill seeks to implement two Constitutional Court judgments which have become known as the Teddy Bear Clinic case and J v the NDPP case. Both of these cases dealt with aspects of the constitutionality of certain provisions of the “Sexual Offences Act”. The Teddy Bear Clinic matter dealt with the constitutionality of criminalising consensual sexual behaviour of adolescents between the ages of 12 years and 16 years, and J dealt with the automatic recording of the details of minors convicted of sexual offences on the National Register of Sex Offenders. The amendment that will address the constitutional concerns raised in the Teddy Bear Clinic case has received much more media attention than the issue of recording minors’ details.

It seems that the reason for this was on full display during the public consultation process this past week, when a number of religious organisations, churches and institutions came to Parliament to object to the amendment which, in essence, seeks to recognise normal sexual behaviour between consenting adolescents. The Constitutional Court has recognised adolescence as a difficult period in a person’s growth and that adolescents require support and not prosecution. These particular amendments will give adolescents the ability to experience their normal sexual exploration and development by not criminalising this behaviour.

Those who attended on behalf of the religious community did not afford the same recognition to sexual behaviour between adolescents. This apparently normal period in the development of human beings became “episodes of consensual abuse”, “unnatural urges and needs” and “immoral and sinful”.

Repeatedly, those of us who believe in human rights and the Constitution where told that we hold no moral compass. At one point in the presentations, it was stated that civil society organisations funded by the west have become “agents of Satan”. They referred to a Constitution in which “the moral values of the majority were not reflected in the liberties contained in the Constitution”. One could almost forget that the Constitution, in fact, recognises rights for South Africans and instead begin to believe that they were in fact liberties; liberties that we can either be deprived of or which we are happy to give up, if only government would allow us to do so.

We recognise and acknowledge that, as South Africans, we have a wonderful opportunity and right to participate and engage in the process of enacting legislation. This is a right that was hard won and we continue to struggle for its realisation.

But we further recognise that we need to ensure that the values in the Constitution and the rights enshrined therein are protected by taking a proactive stance in engaging at the parliamentary level in order to ensure that legislation that is passed within its halls are indeed in compliance with the Constitution. If we do not, we run the risk of parliamentarians only hearing the voices of those who are too eager to give up rights on our behalf.

The amendments to the Sexual Offences Act will, in all likelihood, be adopted by Parliament; there is, after all, a Constitutional Court order mandating them to do so. We ask that Parliament implement the tolerant and accepting nature of the Constitutional Court in both its recognition of the support needed for adolescents during a difficult time in their lives, as well as the need to de-criminalise their normal sexual behaviour.

We echo the sentiments of the Chairperson of the Portfolio Committee in saying that religious leaders and institutions have a duty not only to educate their members on their religious duties, but also to ensure that they use their platforms to educate the public on our Constitution and the rights enshrined therein.

By: Charlene May

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

16 Days: The Vulnerability of Child Migrants

During 16 Days of Activism for No Violence against Women and Children, the Legal Resources Centre will be sharing the stories of survivors of gender based violence who fled their countries to seek asylum in South Africa. Many women, children and sexual and gender non-conforming persons endure horrific hardship, sexual persecution, assault, rape and discrimination in their countries. When they arrive in South Africa their hardship does not end. Some women experience sexual persecution while crossing the border, while others may experience oppression, intolerance and discrimination while trying to create a life in South Africa. When they enter the asylum seeker process, they often endure further persecution. These are their stories.

The vulnerability of child migrants

G was born in Malawi. She lived with her mother who is unemployed and very sick. Her mother could not take proper care of G, who would miss school to look after her mother; sometimes for more than 2 weeks at a time. Her father was working in South Africa and providing money for the family but it was not enough to cover the family’s basic needs. When she was 15, G’s father sent for her and her sister. She now lives with him in South Africa.

In January this year, G and her sister went back to Malawi to visit her mother; a trip that her father had arranged with the help of a truck driver. On their way back to South Africa, the truck driver made a stop at a garage to rest for the night. While her little sister was sleeping, the truck driver made advances at G who rejected them. The truck driver then tried forcing himself on her and she started screaming. This woke up her little sister, who hit him, which made the truck driver let G go. After that incident, the truck driver refused to give the sisters food or water and refused to stop the truck when the sisters wanted to use the bathroom. They did not tell anyone about this incident because the truck driver had threatened to kill their father.

A study of unaccompanied minors travelling across the border conducted by Save the Children in 2007 found that children are the most vulnerable group of people and more likely to be exploited by “guides”. More recent reports by UNICEF, operating in the border town of Musina, indicate that this vulnerability is ongoing. Their reports indicate that the dangers faced by unaccompanied children include being targeted by criminals and being vulnerable to sexual violence on the border. Guides were commonly the perpetrators of violence against the children and were the most likely group to elicit bribes from the children. The study found that 14% of children had been assaulted whilst attempting to cross the border.

16 Days: A Victim of Civil War

A victim of civil war

A is a 40-year-old women who was born in Burundi to a Tutsi mother and a Hutu father. Like in neighbouring Rwanda, the tension between the two ethnicities led to untold suffering for the respective populations, with an estimated 250 000 – 300 000 people killed in Burundi during their civil war from 1993 to 2005. In 2005, the rebel group, National Council for the Defense of Democracy – Forces for the Defense of Democracy, who are pro-Hutu, took power and Pierre Nkurunziza was elected as president.

Since then, conflict has not abated in the country. When A made her asylum application in 2011, reports indicated that up to 20 people were being killed every day in politically-motivated murders.

A’s hardship began in 1995 when Hutu rebels killed her mother. Fearing that he would be killed as an act of revenge for his wife’s death, A’s father fled Burundi. A was raped by rebels and contracted HIV. Daily, she was threatened by the rebel group. Fearing she would be recruited into the group, she decided to flee the country. In 2005, she crossed the border into Tanzania with a group of other refugees. Due to the proximity of Tanzania to Burundi and fearing for her safety, she decided to travel to South Africa.

When she applied for asylum, the Refugee Status Determination Officer (RSDO) rejected her application stating that she would be safe to return to Burundi. The officer claims that Burundi is “on its way to increased stability” and that, “more than 46 000 Burundian refugees want to return”.

Ahead of country elections in 2015, Amnesty International has indicated that unrest continues. In a report entitled, “Burundi: Locked down: A shrinking of political space” (July 2014), the international body has documented an increase in violations of individuals’ rights to freedom of association and peaceful assembly, including the harassment and intimidation of activists and journalists. While A is not a member of any political party, she knows that the people who killed her mother are still living in her home village. As a half-Tutsi, she fears ethnic persecution by the Hutu majority, who controls the government and police services.