REPORT OF THE Working Group on Extractive Industries, Environment and Human Rights Violations in Africa
by Pacifique Manirakiza, Commissioner
Report Presented ON THE OCCASION OF THE 25TH ANNIVERSARY OF THE African Commission on Human and Peoples’ Rights COMMEMORATED AS PART OF THE 52nd Ordinary Session of the COMMISSION
Yamoussoukro, Côte d’Ivoire
9 - 22 October 2012
“The uniqueness of the African situation and the special qualities of the African Charter imposes upon the African Commission an important task. ... Clearly, collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa. [The African Commission] welcomes this opportunity to make clear that there is no right in the African Charter that cannot be made effective.”
“3.5 billion people live in resource-rich countries. Still, many are not seeing results from extraction of their natural resources. And too often poor governance leaves citizens suffering from conflict and corruption”.
1. This Report is presented on the occasion of the 25th anniversary of the African Commission on Human and Peoples’ Rights (the Commission), commemorated as part of the 52nd Ordinary Session held in Yamoussoukro from 9 to 22 October 2012.
2. The Working Group on Extractive Industries, Environment and Human Rights Violations in Africa (the Working Group), which the Commission established to address allegations of human rights violations committed in the extractive industries sector in Africa, is the Commission’s newest mechanism. Thus, unlike other special mechanisms, the Working Group on Extractive Industries does not have as much to report on concerning its achievements; therefore this Report will focus on the factors which led to its establishment, and how the Working Group intends to fulfil its mandate. The Report starts by presenting the issues to be addressed by the Working Group.
II. BACKGROUND TO THE ESTABLISHMENT OF THE WORKING GROUP ON EXTRACTIVE INDUSTRIES, ENVIRONMENT AND HUMAN RIGHTS VIOLATIONS IN AFRICA
3. The continent of Africa is very rich in mineral and natural resources. Several African countries are blessed with some of the world’s largest deposits of minerals and oil. To name a few, Angola’s natural resources include diamonds, iron ore and oil; Botswana is rich in mineral deposits including diamonds, coal, copper, nickel, gold, soda ash and salt; the Democratic Republic of Congo (DRC) contains Africa’s largest deposits of copper, cobalt and coltan, as well as significant reserves of diamonds, gold and other minerals and forest resources; Nigeria is Africa’s largest oil producer and the world’s tenth largest; South Africa is the world’s largest producer of gold, platinum group metals and chromium, and is the fourth-largest producer of diamonds; in Ghana, gold is the country’s third largest export after cocoa and timber, and there are other natural resources such as industrial diamonds, manganese and bauxite; Equatorial Guinea is well endowed with arable land and mineral resources ranging from gold, oil, uranium, diamond, and columbite-tantalite, and notably massive oil reserves discovered in the 1990s, making the country the third-largest producer of oil in Sub Saharan Africa after Nigeria and Angola. Other countries with notable natural resources include Zimbabwe, Burkina Faso, Tanzania and Mozambique; however this list is by no means exhaustive.
4. With this abundance of natural resources, the logical presumption would be that the extraction of these vast deposits of mineral and other resources would yield a great deal of capital, which would in turn contribute to the development of the various countries. However, this is often not the case, as was noted by one of the proud sons of the continent, Mr Kofi Annan, in a recent article published in the New York Times highlighting Africa’s resource curse: “Used wisely, these natural resource revenues could lead to sustainable economic growth, new jobs and investments in health, education and infrastructure. But sadly, history teaches us that a more destructive path is likely — conflict, spiralling inequality, corruption and environmental disasters are far more common consequences of resource bonanzas. The cliché remains true: striking oil is as much a curse as a blessing.”
5. The situation is commonly referred to as the “resource curse” or the “paradox of plenty”, given that all too often the extraction of these mineral resources has fuelled massive human rights violations committed by non-state actors such as armed groups and private companies, or in some cases by the States themselves. Also, the extraction of mineral resources fuel or aggravate armed conflicts as it has been the case in DRC with the illegal exploitation of natural resources by armed groups, in Angola and Sierra Leone where conflicts were fuelled by illicit diamond smuggling, while in Côte d’Ivoire armed groups used diamonds, cocoa and cotton to fund their war efforts and for personal gain.
6. Persistent human rights violations committed by those involved in the extractive industries sector, including by non-state actors, have impacted negatively on countries at large, and on the communities who live in resource–rich areas as they experience forced relocation and eviction, loss of livelihood, destruction of the environment, to name a few. Moreover, some mineral and forest exploitation projects are detrimental to the environment, such as in Nigeria’s Delta region and, in some cases, destroy the ecosystem.
7. Such situations of human rights violations specifically involving non-state actors were reported to the Commission by civil society organisations. The Commission has handled such cases as part of its human rights promotion and protection mandate. At its 34th Ordinary Session held from 6 to 20 November 2003, the Commission adopted the “Report of the African Commission Working Group on Indigenous Populations/Communities”. According to the Report, the dispossession of land and natural resources is a major human rights problem for indigenous peoples. Also, at its 39thOrdinary Session, the Commission decided to conduct a study on likely violations of the African Charter as a result of the policies, operations and activities of non-state actors.
8. These reports and constant allegations of human rights violations committed in the extractive industries sector contributed to the decision to establish a Working Group on Extractive Industries, Environment and Human Rights Violations in Africa.
III. LEGAL FRAMEWORK OF THE WORKING GROUP
9. The African Charter on Human and Peoples’ Rights enshrines a number of civil, political, economic, social and cultural rights, in addition to peoples’ rights. Among these rights, freedoms and duties, Article 21 and Article 24, on the right of all peoples to freely dispose of their wealth and natural resources and to a general satisfactory environment favourable to their development, are often referred to as the most relevant with regard to the human rights impact of the extractive industry sector.
10. The African Commission on Human and Peoples’ Rights (the Commission) has had the opportunity to address human rights violations committed in the extractive industries sector within the framework of its protective mandate, in particular in the Ogoni case (Communication 155.96) which was brought before the African Commission against the Federal Republic of Nigeria. The facts of the case detailed the exploitation of oil reserves in Ogoni land, with no regard for the health or environment of the local communities, including actions such as disposing toxic wastes into the environment and local waterways, with the resulting contamination of water, soil and air. The Commission held that, “Governments have a duty to protect their citizens, not only through appropriate legislation and effective enforcement, but also by protecting them from damaging acts which may be perpetrated by private parties,” and found the Federal Republic of Nigeria in violation of Articles 2, 4, 14, 16, 18(1), 21 and 24 of the African Charter. This was heralded as a landmark decision of the African Commission.
11. The UN Guiding Principles on Business and Human Rights are also relevant to the extractive industry sector in Africa given that several African States are parties to this instrument. In this regard, they made the commitment to implement the reference framework, including to “protect, respect and remedy”, a framework which underlines these principles.
IV. MANDATE OF THE WORKING GROUP
12. At its 46th Ordinary Session, held from 11-25 November 2009, the Commission adopted Resolution ACHPR/Res.148(XLVI)09 establishing the Working Group. Under the terms of this Resolution, the mandate of the Working Group is as follows:
- Examine the impact of extractive industries in Africa within the context of the African Charter;
- Research the specific issues pertaining to the right of all peoples to freely dispose of their wealth and natural resources and to a general satisfactory environment favourable to their development;
- Undertake research on the violations of human and peoples’ rights by non-state actors in Africa;
- Request, gather, receive and exchange information and materials from all relevant sources, including governments, communities and organizations on violations of human and peoples’ rights by non-state actors in Africa;
- Inform the African Commission on the possible liability of non-state actors for human and peoples’ rights violations under its protective mandate;
- Formulate recommendations and proposals on appropriate measures and activities for the prevention and reparation of violations of human and peoples’ rights by extractive industries in Africa;
- Collaborate with interested donors, institutions and NGOs, to raise funds for the Working Group’s activities;
- Prepare a comprehensive report to be presented to the African Commission by November 2011.
V. STRATEGIES TO ACHIEVE THE MANDATE OF THE WORKING GROUP
13. The Working Group plans to implement its mandate in three phases: in the first phase, the Group focuses on research regarding the various facets of the issue of human rights and extractive industries, such as the international human rights legal obligations of non-state actors, the definition of our scope of activities by defining extractive industry within the African context, the mapping of extractive industries in Africa, the relevant jurisprudence, laws and regulations relating to extractive industries, etc. In addition, during this phase, the Working Group will focus on establishing good relations with its partners and securing funding for the implementation of its mandate. During the second phase, the Working Group will undertake country visits and fact-finding missions with the objective of verifying information received during the research exercise. During the third phase, the Working Group will prepare and submit a report to the Commission in accordance with its two-year mandate. The Working Group plans to go beyond the production of a report and prepare guidelines on extractive industries.
VI. ACTIVITIES CONDUCTED
14. Between 2009 and 2011, six Expert Members were appointed to assist the Working Group, in addition to two Commissioners who were appointed in 2009 during the establishment of the Working Group.
15. Honourable Commissioner Mumba Malila, appointed Chairperson of the Working Group in 2009, took part in a number of conferences on behalf of the Working Group, including a conference on Legal Remedies and the Role of Lawyers in Protecting Human Rights in the Context of Corporate Activity organized by the International Commission of Jurists in Geneva in September 2010 where he gave a presentation on the background to the creation of the Working Group, its mandate and how the Working Group hoped to contribute to redressing human rights violations by corporations operating on the continent. From 1 to 2 November 2010, Hon. Commissioner Malila participated in a workshop on extra-territorial obligations which was co-organized by the Centre for Human Rights of the University of Pretoria.
16. At the 50th Ordinary Session, Honourable Commissioner Pacifique Manirakiza was appointed as the Chairperson of the Working Group; in addition, Honourable Commissioner Kayitesi Sylvie Zainabo and Honourable Commissioner Yeung Sik Yuen were appointed as members of the Working Group. With these three new members, the Working Group set out to fulfil its mandate.
17. In this regard, two internal meetings have already been held. The inaugural meeting was held in Nairobi, Kenya, from 28 to 30 November 2011. This meeting was a useful opportunity for its members to become versed in their mandate. By the end of the meeting, a Work Plan was discussed and adopted.
18. From 20 to 21 March 2012, the Working Group held its second internal meeting in Pretoria, South Africa, with the support of the Centre for Human Rights of the University of Pretoria. At this meeting, Members discussed the research projects which Expert members are working on. Additionally, Members discussed the Working Group’s budget and identified partners who will be approached to support the Working Group’s mandate.
19. On 28 August 2012, a Skype conference meeting was organised to have an update on the ongoing studies. Three studies will be submitted soon and another validation meeting will be organised for members of the Working Group. Also, during the Skype conference meeting, a draft request for funding was discussed and the final version was submitted to AUSAID, in collaboration with the Centre for Human Rights of the University of Pretoria.
20. Still during the first phase, the Working Group had the opportunity to interact with potential partners to explain its mandate, working strategy and difficulties faced. As such, on the margins of the internal meeting held in Pretoria in March 2012, the Working Group met with civil society organisations which made significant contributions to the work plan of the Working Group. On the margins of the 51st Ordinary Session of the African Commission held last spring in Banjul, the Working Group organised a meeting that was attended by States representatives, NGOs, NHRIs and international organisations. It was a useful opportunity for the Working Group to raise awareness on its mandate and discuss the different areas of research being undertaken by the Working Group. The participants were fully engaged and made several suggestions on additional areas of research related to the extractive industry for the Working Group to consider.
21. On 21 August 2012, the African Commission sent an urgent appeal to the Government of South Africa following the sad events that occurred in the Marikana mine. I would like to seize this opportunity to express our gratitude to the Government of South Africa for paying attention to the said urgent appeal, in particular by responding positively to the Commission and most importantly, by setting up a Commission of Inquiry to investigate the events. The Working Group continues to monitor closely the situation and hopes that the investigations will soon be concluded.
22. On 9 October 2012 in Yamoussoukro, Côte d’Ivoire, the Working Group held a working meeting with Mr Michael Addo, Member of the UN Working Group on Business and Human Rights. The objective of the meeting was to share experiences and explore opportunities for future collaboration, as part of the Addis Ababa roadmap on collaboration between the special mechanisms of the UN and the African Commission. Moreover, on 10 October 2012 in Yamoussoukro, the Working Group met with Ms Wilmien Wicomb of Legal Resources Centre on behalf of a coalition of NGOs which intend to support the Working Group.
23. We continue to encourage States to be part of the Extractive Industries Transparency Initiative (EITI) which is a coalition of governments, companies, civil society groups, investors and international organisations whose reports help to verify and reconcile, in an independent manner, taxes and other revenues from the exploitation of natural resources. Some States have complied with the EITI requirements by publishing their revenues (Ghana, Nigeria, Zambia, Mauritania, Central African Republic, Liberia, Mali and Niger). Other States are EITI candidates (Côte d’Ivoire, Burkina Faso, Gabon, Congo, DRC, Cameroon, Chad, Guinea, Mozambique, Tanzania, Togo) which shows their willingness to publish revenues from extractive industries.
24. Given that the Working Group will soon enter its second phase – field work, I would like to:
- Call on States Parties to grant authorization to the Working Group, at the latter’s request, to undertake country visits for information gathering. These field missions are a crucial element of the Working Group’s mandate, as they will enable its members to verify information collected during the research phase and to prepare a comprehensive report that will be submitted to the Commission in accordance with its mandate;
- Urge partners of the Working Group, States, civil society organisations and NHRIs in particular to collaborate with the Working Group. This collaboration may be in various forms, including the sharing of relevant information and providing financial and administrative support.
25. In conclusion, it is important to emphasise that the Working Group is in its infancy stage. In practical terms, the Working Group has been fully functioning for one year. The task ahead is momentous, given the years of human rights violations that occurred without abating. Addressing these wrongs, providing a comprehensive report to the African Commission and formulating recommendations on the way forward, in terms of principles and guidelines, for the extractive industries sector in Africa are ultimately the overall goals of the Working Group. To this end, the Working Group is ready and willing to work with all interested parties who seek to contribute to putting an end to human rights violations committed in the extractive industry sector.
I thank you for your kind attention.
 Communication 155/96 (2001)
 Kofi Annan, “Momentum Rises to Lift Africa’s Resource Curse”, 4 September 2012, http://www.nytimes.com/2012/09/14/opinion/kofi-annan-momemtum-rises-to-lift-africas-resource-curse.html?r=0, page visited on 3 October 2012