John Paul Ongeso | Corporate prosecutions in the African Court for human rights abuses?

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13 April 2015 – There is growing concern about allegations of serious human rights abuses by multinational corporations especially in developing countries. Multinational corporations have the capacity to impact rights extensively because of their immense political and economic power. The complex nature of corporate group structures effectively makes corporations impervious to regulatory mechanisms. Richly endowed with natural resources, African states often need the investment of multinational corporations in order to harness these resources. Yet, many African states lack the capacity to regulate multinational corporations effectively. Unsurprisingly, therefore, multinational corporations are able to make significant profits with little regard for or even complicity in the violation of human rights.

The most recent attempt at ensuring that corporations adhere to international human rights standards are the Guiding Principles on Business and Human Rights endorsed by the United Nations Human Rights Council in 2011. However, these principles are not binding on corporations. As outlined in the report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, the purpose of the Guiding Principles is to set up a framework within which governments, business and civil society can work together to establish binding obligations. This framework rests on three pillars: (1) the state duty to protect human rights, (2) the corporate responsibility to respect human rights and (3) the access to remedy, judicial and non-judicial, for those who suffer violations of human rights due to business activity. Governments and civil society groups have not made much progress in identifying ways through which corporations should be held accountable following the UN Guiding Principles. The impact of these principles has thus far been quite limited, largely because they do not create any binding obligations for corproations. Spurred on by reports of gross corporate malfeasance within and outside Africa, the search for viable alternatives for the prosecution of corporations must therefore continue.

Petitions for a treaty setting out binding obligations for multinational corporations are well underway. Such a treaty will address corporate violations of human rights globally. However, it looks like the process will be drawn out – even Martyn Day, lead counsel representing Ogoni farmers and fishermen in a suit against Shell Nigeria believes that the conclusion of such a treaty will probably not happen anytime soon.

In light of the limited impact of the UN Guiding Principles and the remote probability of a treaty setting out binding obligations, there is undoubtedly great potential for the international criminal law chamber of the African Court of Justice and Human and Peoples’ Rights (Statute as Amended pdf). The African Court will only become operational when 15 instruments of ratification are deposited. This regional court will exercise international criminal jurisdiction over persons, defined to include corporate entities (Article 46C of the Statute of the African Court).

The prospect of the operation of the African Court offers three distinct advantages. First, by virtue of the Court’s international criminal jurisdiction, prosecutions against any corporation will be possible insofar as a corporation is shown to have committed or contributed to the commission of crimes in an African state. Second, the practice of seeking justice in the courts of home states of multinational corporations (the states where constituent entities of the corporate group are registered, usually in North America and Europe) would technically no longer be necessary. Third, the Statute of the African Court expands the ambit of possible offences for which a corporation could be held criminally liable.

Unfortunately, reliance on the courts of home states to obtain meaningful relief and to ensure that multinational corporations are held to account has proved to be of limited value. This was particularly underlined by the ruling in Kiobel, a case concerning corporate liability for aiding and abetting of crimes committed against the Ogoni community in the Niger Delta of Nigeria by General Abacha’s military regime. Briefly, petitioners approached the United States Supreme Court seeking redress under the Alien Tort Statute for violations under the law of nations by Shell Petroleum Development Corporation (a joint venture of Shell UK and Royal Dutch Petroleum – neither of which is registered in the United States). The Supreme Court decided against the petitioners, finding that they failed to rebut the presumption against the extraterritoriality of US legislation. One of the rules of interpretation of US legislation stipulates that US statutes are to be presumed not to apply in the territory of a foreign state. This presumption may be challenged by a rebuttal. In Kiobel, this rebuttal was necessary to establish whether the Supreme Court had jurisdiction to adjudicate conduct occurring in the territory of another state. As the petitioners were found not have rebutted the presumption, the Supreme Court held that it did not have jurisdiction to adjudicate on their claim against the Shell Petroleum Development Corporation.

Of marked significance is the expanded subject matter jurisdiction of the African Court. Aside from jurisdiction over the core crimes similar to those in the Statute of the International Criminal Court (genocide, crimes against humanity, war crimes and aggression ordinarily committed in situations of international or non-international conflict), the International Criminal Law chamber of the African Court will have power to try corporations for a number of economic and environmental crimes such as corruption, money laundering, trafficking in persons, trafficking in drugs, hazardous waste and the illicit exploitation of natural resources (Article 28A of the Statute of the African Court). The inclusion of these crimes supports the argument that for true international criminal justice, persons that cause grievous harm by taking advantage of the lack of regulatory mechanisms and weak rule of law in Africa, must be held responsible. Added to this is the fact that economic and environmental crimes are largely perpetrated “in times of peace”, under the governance of relatively stable political regimes. It is particularly in such instances where the International Criminal Court may not be of much assistance. However, the African Court would.

John Paul Ongeso

About John Paul Ongeso

John Paul is from Nairobi, Kenya and is the Director of Corporate Accountability for the African Legal Centre. He is a lecturer at Strathmore Law School, Strathmore University in Nairobi. He obtained his LLM in International Law in 2012 and his LLB with distinction from Wits University in 2011. He is currently pursuing his PhD in International Criminal Law at the same university. John Paul has worked as a Senior Research & Teaching Associate and has taught Customary law, Jurisprudence and Public International law as a Sessional Lecturer at Wits Law School. He also runs a university residence in Johannesburg which aims at promoting academic and professional excellence among its students. John Paul enjoys the outdoors and playing basketball.