Though positive engagement with businesses should be considered a preferred option when it comes to promoting corporate respect for human rights, sometimes the open legal confrontation of human rights violators is the only way to make progress. This is when human rights defenders such as Angela Mudukuti, a lawyer running the International Criminal Justice Programme at the Southern Africa Litigation Centre (SALC), are critically needed.
Corporate responsibility is a crosscutting issue that affects varied human rights, from land rights to work, health rights to the right to life. Angela Mudukuti, based in Johannesburg, is a lawyer tackling corporate responsibility for human rights violations across Southern Africa, focusing on war crimes, genocide and crimes against humanity. She highlights that since corporate entities can be involved in such crimes they should therefore “not be treated differently from States or other stakeholders”.
She defends a holistic approach to justice, where corporate accountability should be sought whenever businesses are involved in violations, regardless of the sectors or human rights affected. And in cases of complicity in war crimes, genocide or crimes against humanity, she says “corporate accountability is important to all the victims”.
Corporate responsibility litigation on gross violations, a hazardous job
Given the weighty consequences they face if their responsibility for such gross violations is revealed, Angela’s experience is that corporate entities are mostly reluctant to facilitate engagement with human rights defenders, making litigation procedures the only way to ensure transparent investigation and accountability. Yet, suing companies and especially major corporations for complicity in gross human rights violations can prove to be dangerous, even for the best-trained defenders.
“We work regionally and so we often face regional and local threats. For example: infiltration into your information databases; other security threats which can be physical in nature… corporate entities … have the ‘muscle’ to intimidate you and they will seize any opportunity to do so…”
Angela and other members of the SALC team have also experienced personal threats, but she remains positive, seeing these challenges as an “indication that you are doing the right thing” and a part of the burden carried by most human rights defenders in the world. She also highlights that threats do not come only from corporate or government entities, but also from “individuals who disagree” with the work she is doing.
From litigation to advocacy
Other practical obstacles can impede SALC’s human rights work such as a lack of access to information to build proper advocacy, and resistance from legal administrative bodies Yet, this does not prevent SALC from extending their litigation work into advocacy, which is jointly conducted with local organisations throughout Southern Africa:
“The first thing is to decide if litigation is viable or if the same results can be achieved by other means. Secondly, should we decide to litigate we need to determine how we can structure the advocacy around it because raising awareness is very important.”
Angela attended the UN Business and Human Rights Forum, on behalf of the SALC, for the second time in November 2015. She was hopeful to get more insights on what advocacy strategies and judicial mechanisms are being successfully used in other regions of the world, so as to see if these could be adapted and/or applicable in the context in which she works. She also considers the Forum to be an “interesting meeting of the minds”, a invaluable platform for exchange and networking and an “eye opener on who is doing what”.
“The presence of all the stakeholders at the UN Forum on Business and Human Rights facilitates discussion and dialogue which is necessary for us to advance the business and human rights agenda (…) I am expecting a rich discussion on where we stand on business and human rights, where we stand on the UN Guiding Principles…”
More support needed from international communities and governments
Many corporate entities involved in gross human rights violations have transnational activities for which the “ramifications transcend boarders”. This makes the work of corporate responsibility defenders even more challenging, and is one of the reasons why SALC has a regional focus. Angela says the regional nature of violations also demands that the international community “be united and prioritise business and human rights (…) in Southern Africa and in other parts of the developing world”.
The SALC is also looking to address the devastating environmental implications of various corporate projects. Angela says there is great need for reinvigorated compliance standards and regulation from governments on the issue of environmental impact. Governments should ensure that mining projects in particular are preceded by a “real environmental impact assessment and not a tick box exercise”. The aim should be to detail the possible environmental degradation caused by a project; clearly identify the communities that could be affected; and ensure that these communities have given “prior and informed consent”.
“Governments really have a key role to play. They can regulate and do exercise a measure of control over what happens under their watch. They should also listen to their communities and their people and consider them at all points when a new business venture is started.”
Follow Angela on Twitter at @AngelaMudukuti.