CHAPTER 3 THE EXTRACTIVE INDUSTRY SECTOR AND HUMAN RIGHTS LAW IN AFRICA

• Jurisdiction: United States

Human Rights Law and the Extractive Industries
(Feb 2016)
CHAPTER 3
THE EXTRACTIVE INDUSTRY SECTOR AND HUMAN RIGHTS LAW IN AFRICA
Pacifique Manirakiza
Commissioner
African Commission on Human and Peoples' Rights
Ottawa, ON
Paulo Vannuchi
Commissioner
Inter-American Commission on Human Rights
Washington, DC

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PACIFIQUE MANIRAKIZA is a Commissioner of the African Commission on Human and Peoples' Rights (ACHPR), and a Burundian citizen. He was elected to the ACHPR at the 17th Summit of the Heads of States and Governments held in Malabo, Equatorial Guinea, from June 30th to July 1st, 2011. Commissioner Manirakiza brings to the Commission an impressive expertise in a broad range of human rights issues. He holds a Licence en droit, with honours, from the University of Burundi; a Certificate for human rights teaching and research at university level from the International Center for University Human Rights Teaching (Strasbourg, France); and a PhD in international criminal law from the University of Ottawa. He is an Associate Professor at the Faculty of Law (Common Law Section), University of Ottawa. He teaches international criminal law, criminal law, and criminal procedure. He is a member of the Human Rights Research and Education Centre, affiliated with the same university. He has also been a member of and a faculty advisor for the editorial board of the Ottawa Law Review.

PAULO VANNUCHI is a Commissioner of the Inter-American Commission on Human Rights (IACHR), and a citizen of Brazil. He was elected to IACHR during the 43rd regular session of the OAS General Assembly in June 2013 for the prescribed four-year term, which began on January 1, 2014. Mr. Vannuchi is a political and union consultant. During his youth, he was imprisoned for five years due to his activities in the resistance to the military dictatorship in Brazil. He studied journalism at the University of São Paulo, where he received a Master's Degree in Political Science. He was a member of the team that conducted the investigation "Brazil: Never Again"; was a cofounder of the Cajamar Institute; and was a political adviser to the national office of the Workers Party of Brazil. He also served as Executive Secretary of the National Coordinating Committee of the Lula for President Campaign in 1994 and 2002. He held various posts, including that of President, at the Citizenship Institute, coordinated by Luiz Inácio Lula da Silva. He served as Human Rights Minister in the Lula Government, between December 21, 2005 and December 31, 2010, as well as President of the Human Rights Defense Council; the National Commission for the Eradication of Slave Labor; and the National Committee to Prevent and Combat Torture in Brazil. He is the author of articles and publications on political science and human rights, among other topics.

I. Introduction

It is a trite statement that Africa is endowed with huge quantities of natural resources, despite the fact that the continent is lagging behind in economic development as most of African countries rank among the poorest in the world.¹ Numerous factors including colonization, corruption and poor governance of some States can provide some explanations to this resource paradox or curse as some would put. In order to ensure that African peoples benefit from the richness of their land, political leaders have put in place an impressive legal and institutional infrastructure, both at continental, sub-regional and national level. This paper seeks to analyse the legal and institutional framework relevant to human rights and extractive industries. In particular, it focuses on how Africa is reacting in order to mitigate the human rights negative impact of extractive industries. In part I, the discussion will be contextualized through an brief overview of the distribution of natural resources in Africa and the negative impact of extractive industries on human rights in Africa. Part II discusses the actual legal and institutional framework relevant to the protection and promotion of human and peoples' rights in the extractive industry sector.

II. A natural resource-rich Africa

"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." ²

Africa is a resource-rich continent. It ranks high in the world production of numerous resources, especially minerals, oil and gas. For instance, South Africa produces three quarters of world platinum; the Democratic Republic of Congo 3% of cooper and tin and half of the world cobalt; Botswana 20% of diamonds; Niger ranks fifth for uranium production while Namibia occupies the fourth place; Sierra Leone is 10th for diamonds and 4th for rutile; Zambia is 6th for cooper and 5th for cobalt ore, etc.³ Other countries do also produce other resources, renewable or non-renewable, in large quantities: oil in Nigeria, Angola, Algeria, etc; gold is extracted in industrial proportions in Ghana, Burkina Faso, Tanzania, etc. Other countries have discovered untapped resources: gas and oil in Uganda, Tanzania, Kenya, Senegal, etc.⁴

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In terms of its contribution to the African economy, the extractive industry sector accounts for more than 80% of foreign exchange earnings in some countries such as Bostwana and Democratic Republic of Congo.⁵ Moreover, as Hilson correctly put, "it is a well-known fact that mines can have a positive socioeconomic impact in local communities [...] Moreover, the revenues accrued from activity contribute positively to export and foreign exchange earnings, and at the community level, projects serve as a major source of employment for local people, and trigger the rise of a wide range of small businesses such as catering, transport and cleaning services.⁶ Therefore, most of the producing countries depend largely on the natural resources for revenues and job creation, making the extractive sector an important development tool.⁷

However, the pressure of the market has led most African States to changing their laws in order to create generous incentives regimes so that they can attract foreign investors. Therefore, African States are not optimizing the profits; which led an author to caution us when he asserts that the "contribution in net terms might not be that significant given the generous incentives offered to mining firms, especially in an attempt to retain part of sales earnings from mineral products in foreign accounts".⁸ So the liberalization of investment climate, along with corruption practices, have deprived States of critical resources that can be used to meet their international human rights obligations in order to uphold the enjoyment of human and peoples' rights in the extractive industry sector.

In fact, in the traditional conception of extractive industry, multinational companies pursue maximum profits for their shareholders. They usually elect their home in areas with low wages for employees, low labour standards or poor governance of the country. They don't exist for public interest purposes such as building hospitals, roads or schools for local communities. This is governments' job and duty! What governments' can do is to levy taxes and get revenues from extractive activities in order to fulfill their social mission and deliver services to the people. However, although they have no legal duty to fulfill primary states obligations towards the citizens,⁹ companies are beginning to change their conceptions and adapt to the new demands of a sustainable extractive industry. As King would put it, "companies that still limp on the classical financial (economic) leg would inevitably fall for want of social and environmental acceptance."¹⁰

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That is why nowadays they contribute to the development of key socioeconomic infrastructure such as roads, hospitals, schools and housing.¹¹

The following map shows resources tapped in some selected countries and what they contribute in terms of gross revenues (Source: Africa Progress Panel, "Equity in Extractives: Stewarding Africa's Natural Resources for All", Africa Progress Report 2013, p. 43).

Extractive industries, apart from their contribution to economic growth and job creation,¹² have had negative social and environmental impacts in neighboring local

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communities. The price has been high in terms of human rights violations due to extractive activities.¹³ For instance, the right to environment has been drastically affected: disruption of natural ecosystems; pollution of air, water and soil essential for farming, grazing livestocks; reduction of arable land, etc. As far as social, economic, cultural rights are concerned, most of the time, extractive industries carry out activities in remote areas usually inhabited by indigenous or local communities to the point that their lifestyles and culture are often disrupted by the extractive-related displacements of local populations.¹⁴ Forests which constitute their supermarket, their pharmacy as well as their church or temple are destroyed.

In fact, the relationship between extractive companies and human rights violations dates back from the pre-colonization era where western companies went to Africa to search for natural resources and ended up playing a major role in the colonizing enterprise of Africa by western countries (ex: German companies; etc.).¹⁵ Colonization came with its associated human rights violations (violation of sovereign rights; violation of the right to development and the right to self-determination)

II. Legal and institutional framework for human rights in the extractive industry sector

The legal and institutional framework...