John Paul Ongeso | First for Africa: Organisational criminal liability for deaths caused at work

15 June 2015 – The Federal Parliament of Nigeria is in the process of passing the Corporate Manslaughter Bill, 2010. The Bill targets both public and private entities — referred to collectively as organisations — and seeks to penalise these bodies for the offence of manslaughter: that is, where the death of an individual occurs due to negligence at the workplace. The details of how organisational liability is established under the Bill illustrate that there has been a shift away from the traditional method. What the Bill suggests, much like the United Kingdom’s Corporate Manslaughter and Corporate Homicide Act, 2007, is that it is necessary to look holistically at the conduct of organisations, particularly their decision-making structures, in determining criminal liability.

Criminal prosecution of corporate bodies is fairly recent globally

Many jurisdictions provide for the prosecution of both individuals and corporate bodies. However, prosecuting corporations only really began in the twentieth century. There are still quite a number of states — particularly those in the civil law tradition — that do not recognise corporate criminal liability. This is because, as a general rule, liability requires proof that the accused participated in criminal conduct with a guilty state of mind or “fault”: that is, intentionally or — in some instances — negligently. Prior to the twentieth century, corporate bodies — as legal fictions devoid of the mind and will that individuals have — were viewed as incapable of committing a criminal offence.

The historical trajectory through which the practice of prosecuting corporate bodies arose has culminated in two main “traditional” methods of establishing corporate criminal liability. First, in the United States, a corporate entity may be criminally liable insofar as its employee, whether a high- or low-level one, acting within his or her scope of employment, commits a crime intending to benefit the corporate entity. This is referred to as the doctrine of respondeat superior or vicarious liability. Secondly, in England and many common-law countries, a corporate entity may be found criminally liable through the doctrine of identification. This doctrine stipulates that only the conduct and mental state of a leading official, seen as the “directing mind and will” of the corporate body (its “alter ego”), may be deemed to be the conduct and mental state of the corporate body.

At the heart of these two traditional methods is the idea that the criminal liability of a corporate body is dependent on establishing the criminal liability of an individual, a representative or agent of the corporate body. This is problematic. When either the doctrine of identification or that of respondeat superior is applied to large corporations with complex and multi-tiered decision-making structures, it is practically impossible — in most cases — to pinpoint which individual employee, senior or not, was responsible for the criminal conduct. Therefore, in many cases brought against corporate bodies, the lack of this kind of evidence has effectively barred the prosecution from proceeding against the corporate body.

Shift towards liability on the basis of an organisational failure

The Nigerian Corporate Manslaughter Bill changes this by shifting the emphasis away from a rigid examination of the conduct and fault of a senior official to whether there has been a “failure of management” that constitutes grossly negligent conduct. In many cases, this negligent conduct is constituted by a failure to carry out a duty of care: in other words, an omission. In terms of the Bill, an organisation will be guilty of the offence of corporate manslaughter “if the way in which its activities are managed or organized by its senior management is a substantial element” of the breach of a duty of care.

Thus, to establish an organisation’s criminal liability, the Bill states that it is necessary to examine whether (i) the management of the organisation’s activities fell below the required standard of care in respect of matters of health and safety; and (ii) the management of its activities must be a “substantial element” in the breach. This is a novel approach, quite distinct from the traditional methods, as it looks at the corporate body as a whole, examining whether there has a been a systemic failure that has permitted conduct that leads to harm.

The Bill limits liability for deaths that occur due to failures to observe duties of care that are “relevant”. These include duties of care owed to employees, duties of care as occupiers of premises, and, crucially, duties of care to owed to those whose safety the corporate body is responsible. This is particularly important for state entities that have custody over detainees.

The implications of this Bill for Nigeria and for Africa are that corporate bodies, public and private, would need to ensure that they manage their activities giving utmost regard to health and safety, applying caution and improving standards. Most importantly, loss of life would be reduced.

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.