Transitional justice can be employed to address business-related human rights violations and a range of interrelated developmental and governance challenges in Africa, especially through the African Union’s Transitional Justice Policy, writes Bobuin Jr Valery Gemandze Oben.

At a recent policy meeting on business-related human rights violations in Africa, I highlighted the value of using the African Union Transitional Justice Policy (AUTJP) as a tool to address these violations on the continent. I noted that the United Nations Guiding Principles on Business and Human Rights are overly broad and do not fit the particularities of the African context, nor thoroughly espouse virtues of reconciliation, healing and local ownership.

The stakeholders were bemused, with one quipping that “comparing the Guiding Principles to the AUTJP is like comparing apples and oranges.” This is a clear indication that transitional justice is yet to realise its full potential, particularly on the African continent, as it continues to be viewed as only relevant in post-conflict situations.

Yet, transitional justice is an approach that can be employed pre-conflict, during conflict and post-conflict. Moreover, the AUTJP is designed to address a range of interrelated developmental and governance challenges on the continent.

Business-Related Human Rights Violations in Africa

In 2013, the United Nations Conference on Trade and Development projected Africa as the world’s most profitable continent. Moreover, from 2006 to 2011, the return on foreign direct investment in the region stood at 11.4%, which was more than the global rate of 7.1%. By 2021, this foreign direct investment hit a record $83 billion.

To effectively tap Africa’s highly profitable resources and markets, infrastructure in terms of roads, dams, large-scale factories and buildings, among other facilities, has been constructed. While the GDP of African states has boomed, socioeconomic advancement has come at a cost, posing a threat commonly described as business-related human rights violations – a category of abuses that arises as a direct consequence of business activities.

The AUTJP positions itself as “an African model and mechanism for dealing with not only the legacies of conflicts and violations, but also governance deficits and developmental challenges.” Developmental challenges include business-related violations as well as internal armed conflict, violent extremism and climate change impacts, among others. As governance deficits occasion developmental challenges, and vice versa, the policy captures this complexity. It also allows for adaptation in different country contexts, such that even traditional African values, autochthonous to particular societies, are considered.

Business-related violations are a broad category. They can range from child labour to abuses to land and the right to life of indigenous communities, especially in instances where access to natural resources is hindered, such as industrial contamination of fresh water sources or cultivable land. These activities also cause pollution and environmental degradation, which impacts on ecological systems and has lasting adverse effects on surrounding communities’ health, livelihoods and cultural practices.

Examples include the abuses of mining corporations in the Democratic Republic of the Congo, where the cobalt mining industry is detrimental to the welfare of over 40,000 child labourers, and in Ghana, where Gold Fields Ghana had to resettle 30,000 landowners and their families between 2003 and 2008 as a consequence of its activities. In the Niger Delta, an estimated 240,000 barrels of crude oil are spilled annually, with the result that it would take 30 years to reverse damage to public health and the regional ecosystem. In a ground-breaking 2019 study, Bruederle and Hodler found that babies are twice as likely to die in the first month of life if their mothers lived near an oil spill in the Niger Delta before getting pregnant.

These examples are all wide-scale human rights violations, even though they are not directly linked to conflict. Ordinarily, and in tandem with several international legal standards, the avenue for recourse available to affected communities is the judicial system, which could compel accountability for these violations without prejudice to reparations.

Addressing Africa’s Developmental Challenges with Transitional Justice

The AUTJP goes beyond legal remedies. Its comprehensive approach to addressing business-related human rights violations and other developmental challenges in Africa is a crucial step forward.

For communities that have lost loved ones, been plagued with deadly diseases, lost their livelihoods or ancestral land, or suffered an erosion and degradation of culture and tradition as a result of business-related violations, reparations alone would not suffice to deal with that horrid past. Beyond providing measures of redress and accountability, the AUTJP incorporates pillars of reconciliation, socioeconomic inequality, trauma healing, memorialisation and institutional reform.

To this effect, the policy provides a nuanced framework for addressing the complex harms caused by business activities. In the Niger Delta, exploitation of crude oil led to the expropriation of indigenous land, oil spillage and contamination of water bodies, which destroyed the livelihoods of the surrounding communities. This exploitation was done with little regard for the socioeconomic welfare of the region. The consequence was an eruption of violence and the creation of militant groups, which birthed a violent crisis.

In such a case, there exists a complex nexus among business activity, human rights violations, armed conflict and socioeconomic inequality, which requires a holistic response. By prioritising guarantees of non-recurrence, truth-telling, and institutional and socioeconomic reforms, the AUTJP offers a transformative transitional justice approach that can help African states address the root causes of these violations, and achieve transformation in affected communities.

Tackling Governance Deficits through Transitional Justice in Africa

Africa has become increasingly plagued by security challenges, which can be linked to climate change, migration, economic regression, conflicts and political instability. These problems encourage both developmental challenges and related deficits in governance.

In the last year at the Centre for the Study of Violence and Reconciliation, I have been working on the issue of radicalism and violent extremism in the Sahel region. Mali has had over half of its territory beyond state control, as has Burkina Faso. This lack of state presence and services created governance deficits, which in turn exacerbated security  and developmental challenges. Violent extremists filled the power vacuum, taking over local administration and the dispensation of justice.

Through research and advocacy, we pushed for increased recognition of traditional justice mechanisms as a means to address violent extremism, as outlined in the AUTJP. The rationale is that, in such societies, which are also highly traditional, the state needs to valorise traditional authorities who can act as its proxies, such that there is no power vacuum that can be filled by extremists.

In the Sahel, traditional transitional justice tools, such as community dialogues, have been used to pre-empt and address violence between Fulani herders and Zarma farming communities. Increasing desertification, which is an effect of climate change, is pushing these two communities together, exerting pressure on scarce fertile land and occasioning conflict. The AUTJP provides guidelines that can be used as early warning systems to even pre-empt radicalism and violent extremism.

In conclusion, transitional justice needs to be fully appreciated as an approach to addressing the multiple and complex developmental challenges and governance deficits in Africa, extending beyond its important role in post-conflict reconstruction.

Bobuin Jr Valery Gemandze Oben
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Bobuin Jr Valery Gemandze Oben is an Advocacy Specialist at the Centre for the Study of Violence and Reconciliation.

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