Implementing the UNGPs in Sub-Saharan Africa – Status of the National Action Plans on Business and Human Rights

Published in HRDD Newsletter/March 2021

Texts provided by Martin Oyosa Mubisi and Thomas Mukhebi/Fairtrade Africa

Fairtrade Africa plans to engage with and support African governments in the implementation of the UNGPs to ensure sustainable corporate governance legislation and accompanying mandatory guidance. The aim is to guarantee that the root causes of human rights and environmental violations are addressed and a real shift in business practices happens, leading to better livelihoods for small farmers, workers, and artisans.

Despite numerous records of business-related human rights abuses and the long-term impact of poorly regulated extractive industries’ operations on human rights, it is concerning that the uptake of the United Nations Guiding Principles on Business and Human Rights (UNGPs) by African governments remains low.

Notwithstanding the progress made, many challenges remain. For example, despite the September 2014 commitment from the African Union (AU) calling on member states to implement the UNGPs, the low level of engagement by African countries has been a concern: some African civil society organizations (CSOs) have been actively participating in the process, less so governments and NHRIs. Cooperation among CSOs around the BHR issues continues to grow, particularly with the launch in November 2013 of the African Coalition for Corporate Accountability. As far as progress at national level is concerned, only a few countries seem to have risen to the challenge of developing of National Action Plans (NAPs). Nevertheless, some of those could serve as examples to others who have expressed interest in developing the NAPs (for instance the approach taken by Kenya).

In July 2019, Kenya became the first country in the African continent to publish a NAP on business and human rights, though NAPs are at various stages of development in other countries including TanzaniaMoroccoZambia, Uganda and Mozambique. Some of these states have published national baseline assessments (using the UNGPs as the principal point of reference) as part of that process.

Kenya

Kenya was the first African country to announce its commitment to developing a national action plan for business and human rights in 2016. National action plans ideally provide a structured and comprehensive framework for anchoring national regulation of business conduct in relation to human rights. The Kenyan NAP process was formally launched by the Attorney General in February 2016 and finalized in July 2019. The NAP still needs to be approved by the Attorney General, after which he will table it for cabinet approval. If approved by cabinet, it will pass to the National Assembly for discussion and adoption.

The process to develop the Kenyan NAP was led by the government through the State Law Office and Department of Justice, with support from the Kenya National Commission on Human Rights. Stakeholder and rights-holder groups were prominently recruited into the national steering committee on the national action plan, the decision-making organ in the process. The steering committee brought together 13 institutions, organisations and agencies and stewarded the development of the action plan. It brought a sense of inclusion into the process, where roles were allocated to different stakeholder groups and decisions on the process made based on consensus.

The main steps in the development of the Kenyan national action plan were:

  • The acceptance by the State of recommendation by Norway on the Universal Periodic Review (UPR), that Kenya should “develop a national action plan for the implementation of the Guiding Principles on Business and Human Rights”.
  • The development of a concept paper on the UN guiding principles on business and human rights to inform government policy intervention and use as an advocacy paper.
  • An official statement by the attorney general committing the government to develop a national action plan on business and human rights.
  • The establishment of a national steering committee on the national action plan.
  • The convening of a stakeholder forum on the development of a national action plan.
  • Conducting a national baseline assessment, published in 2017.
  • The drafting of the Kenyan national action plan. The NAP is focusing on five areas: 1) land and natural resources; 2) labour; 3) environment; 4) revenue transparency and 5) accountability. Priority areas were selected based on deliberations with stakeholders at the initial briefing stage and from a non-scientific survey of the common areas of tension between business and human rights in Kenya. An additional structure put in place to support the NAP formulation is thematic working groups. There is one working group for each thematic area, which in turn comprises subject matter experts. The thematic working groups help deepen analysis of issues, sharpen recommendations or action points and suggest monitoring mechanisms.

The Kenyan NAP is yet to be officially adopted by the Kenyan cabinet. It is expected that once promulgated by cabinet, the State will facilitate a participatory process of developing comprehensive implementation and monitoring frameworks, including through developing: legislation, policy, guidelines and administrative and institutional positioning for the protection and promotion of human rights.

Source: DIHR

Uganda

Uganda has prepared a draft NAP which is currently sitting within the government. It is unclear what the next steps will be during the pandemic when attention is focused elsewhere. During the 2nd Universal periodic Review (UPR2) in 2016, one of the recommendations to Uganda was to develop an action plan on Business and Human Rights to implement the UNGPs. The Government of Uganda accepted the recommendation and embarked on the process of developing a NAP on Business and Human Rights, process coordinated by the Ministry of Gender, Labour and Social development.

The Initiative for Social and Economic Rights (ISER) partnered with the Ministry of Gender, Labor and Social Development in this process. In February 2019, an Inception meeting was held wherein the stakeholder identification was done together with a road map for the NAP process. Nine regional Consultations were to be conducted between April and June 2019. Special focus has been placed on the vulnerable persons in the community by giving them an opportunity to share their plight that arises from their interaction with business activities.

Office of the High Commissioner for Human Rights (OHCHR) Uganda is supporting the Ministry and partners in the preparation of NAP, where environment and land issues have been identified as priority areas. The draft is being finalized and is expected to be submitted shortly to the Ministry’s senior leadership. The National Action Plan comes at a crucial time, as Uganda is embarking on its third National Development Plan which focuses on economic growth through industrialization. 

Sources: DIHR, OHCHR

Mozambique

The Mozambican Constitution guarantees many human rights including equality of citizens before the law; and the Labor Code and related regulations also prohibit discrimination, establish rights for migrant workers and establish minimum labor standards. However many of those rights are also infringed at the intersection of business and human rights.

A process aimed at developing a NAP (either as a stand-alone document or as part of another strategic policy document) was launched in 2014 as a joint government and CSO initiative. Whereas the efforts have been civil-society led thus far, that seems to be changing and the government is looking towards taking the leadership role. In November 2017, the Mozambique Bar Association’s Human Rights Commission with the support from the Westminister Foundation for Democracy held three-days of training and multi-stakeholder consultations across government, parliament, business and civil society to build capacity on business and human rights including NAPs. As a result of the meeting, the Ministry of Industry and Commerce expressed interest in leading the process. One of the next steps includes a baseline assessment on extractives and security – the two issues in focus. Also, the newly formed National Human Rights Commission of Mozambique has expressed interest in the process.

Sources: Report commissioned by Norad, DIHR

Zambia

The Zambian Government has not made an official commitment to developing a National Action Plan on Business and Human Rights. However, during the country’s 3rd Universal Periodic Review session in November 2017, Zambia supported a recommendation to develop a NAP. To date, all efforts to push for the development of a NAP have been led by the Zambia Human Rights Commission (ZHRC), the country’s national human rights institution. Since 2011, the Danish Institute for Human Rights (DIHR) has been collaborating with the Zambia Human Rights Commission to advance business and human rights. The results of this collaboration are:

  • The Human Rights and Business Country Guide, a comprehensive research project that identified the major impacts of businesses operating in Zambia.
  • The National Baseline Assessment on Business and Human Rights completed in 2016 examined the state duty to protect human rights, its role in providing effective remedies for business-related human rights abuses under Pillars 1 and 3 of the UNGPs.
  • In 2020, the ZHRC undertook an NBA specifically looking at Pillar II to explore the extent to which businesses in two selected industry sectors – agriculture and mining – are implementing the corporate responsibility to respect human rights as envisaged by the UNGPs. This was expected to be published in December 2020.

The Zambia Human Rights Commission has used the findings from the baseline to engage with the government and other stakeholders on business and human rights issues, and highlighted the need for a NAP on business and human rights.

Tanzania

In 2013 the Tanzanian government committed to undertake concrete activities aimed at improving respect for human rights in the business context, including to ‘establish a Plan of Action that promotes meaningful participation and consensus of all stakeholders. The Human Rights Action Plan (2013-2017) of the Tanzanian Government tasked the Commission for Human Rights and Good Governance (CHRAGG) with developing a National Baseline Study on Business and Human Rights and to support the development of a National Action Plan on Business and Human Rights.

The Ministry (…) should identify and undertake a review of laws and policies relevant to business and human rights – e.g. institutional frameworks on labour, land and environment – and make any necessary adjustments to bring these into line with the requirements outlined in the Guiding Principles.

National baseline Assessment on Tanzania

The National Baseline Assessment was released In November 2017 and provides a comprehensive account of the status of protection of human rights with regard to business activities in Tanzania. The Baseline was developed by CHRAGG, with technical support from the Danish Institute for Human Rights (DIHR). The Baseline draws on extensive desktop research, including materials from, among others, the Tanzanian Legal and Human Rights Centre (LHRC), engagement and consultation with government, business and civil society stakeholders, as well as three field missions to gather case study experiences in the agricultural, mining and tourism sectors in Tanzania Mainland and Zanzibar.

Ghana

The Ghanaian government has not committed to producing a NAP on Business and Human Rights. Ghana’s National Human Rights Institution, the Commission on Human Rights and Administrative Justice (CHRAJ) facilitated three capacity-building workshops on the UNGPs  for stakeholders in Accra in July 2014, with assistance from Shift and the Centre for Research on Multinational Corporations (SOMO).

The Ghana Institute of Management and Public Administration (GIMPA) has undertaken a national baseline assessment, which was due to be published late 2020. The purpose of the assessment is to better understand the situation on human rights related to business in Ghana.

The Constitution of Ghana mandates that the fundamental human rights and freedoms it enshrines must be respected and upheld by all natural and legal persons, government and the judiciary, and are enforceable by the Courts. Ghana was the first African country to participate in the Voluntary Principles on Security and Human Rights Initiative for extractive sector companies, recognizing that although governments have the primary responsibility to maintain law and order, security and respect for human rights, companies in industries such as mining have an interest in ensuring the protection and promotion of human rights.

Source: DIHR

South Africa

There is mounting pressure on corporates in South Africa to consider business and human rights risks as a matter of best practice, even if there is no direct obligation on them to do so. Whilst the adoption of best practice is welcomed, it is expected that the South African Parliament will begin to be lobbied to enact legislation including mandatory supply chain reporting requirements for companies with high public interest.

The South African Government has not made an official commitment to developing a NAP on Business and Human Rights. To date, all efforts to push for the development of a NAP have been led by academia and civil society. One such effort is the “Shadow” National Baseline Assessment of Current Implementation of Business and Human Rights Frameworks released in April 2016 by The Centre for Human Rights at the University of Pretoria, with support from the International Corporate Accountability Roundtable. The assessment aims to lay the foundations for a potential NAP process and supporting general business and human rights advocacy in South Africa. Furthermore, it intends to provide an overview of existing legislative and regulatory frameworks relating to business and human rights in South Africa, as well as remaining gaps in such frameworks or in their implementation.

Another effort is the Human Rights and Business Country Guide on South Africa, published in March 2015. It contains information regarding the potential and actual human rights impacts of businesses operating in South Africa. The Guide was produced by the Danish Institute for Human Rights (DIHR) and the South African Human Rights Commission (SAHRC). The aim of the Guide is to improve the human rights practices of companies operating in South Africa. According to its authors, an updated national baseline assessment would be necessary if plans to produce a NAP on business and human rights were adopted in order to reflect any developments since the report was published.

Sources: NRF Institute, DIHR, Norton Rose Fulbright

Nigeria

Efforts to develop a NAP on Business and Human Rights in Nigeria have been led by the Nigerian National Human Rights institution, the National Human Rights Commission of Nigeria (NHRC), as well as civil society. Civil society and, in particular, the African Centre for Corporate Responsibility, have been facilitating various multi-dimensional consultations with stakeholders such as community members and leaders, representatives of oil and multinational corporations, private sector, ministry representatives, government departments and agencies, and journalists between 2012 to 2017.

In 2016, the African Centre for Corporate Responsibility partnered with the NHRC to further the NAP development process. The NHRC facilitated a Strategic Multi Stakeholders forum in Abuja, in February 2017. draft National Action Plan on Business and Human Rights was produced as a result of this consultation. It proposes several recommended state policies relating to human rights, including:

  • That the state requires clauses in its contracts with other entities specifying human rights obligations of the contracting parties and sanctions for violations;
  • That banks operating in Nigeria should include a duty in respect of human rights in loan agreements; and
  • That companies should be required to show evidence of human rights compliance for imports and exports.

The NHRC has highlighted that the draft NAP is a working document and anticipates that it will be updated with further input to reflect varying regional and geopolitical considerations within the country.

Malawi

Several public and private initiatives are underway towards development of a national action plan in Malawi. There is also a Malawian Human Rights Commission, with a mandate to receive individual, group and institutional complaints regarding alleged human rights violations.

Morocco

Morocco does not have a separate NAP on business and human rights, but a chapter on business and human rights was integrated to the 2018-2022 National Action Plan for Democracy and Human Rights (known as “PANDDH” from the French acronym), officially adopted in December 2017, following several years of consultations. Sub-section VII of the PANDDH is devoted to business and human rights. The first planned measure is the elaboration and adoption of a national action plan on business and human rights, through engagement with all stakeholders. Other measures include: encouraging business enterprises to adopt internal human rights policies, integrating human rights in business in law and practice, and awareness-raising and capacity-building.

The Moroccan National Human Rights Council has been working to raise awareness among businesses, parliament, civil society and state authorities about the UNGPs and the importance of developing a Business and Human Rights NAP.