Introduction
African realities require African solutions, and the Business and Human Rights (BHR) discourse is shifting from abstract theoretical frameworks to tangible enforcement mechanisms across the continent. While global BHR discussions often emphasise Western regulatory models, distinct approaches have developed in African jurisdictions that offer valuable insights into corporate accountability, human rights and environmental protection, and sustainability governance.
The Constitutional advantage: A laboratory for BHR practice
As with many African countries, South Africa has a Constitution which recognises and aims to address the injustices of its past, establishing the framework for a society based on democratic values, social justice and fundamental human rights. The Constitution is the supreme law of the land and contains a justiciable Bill of Rights that enshrines the fundamental human rights of all people in the country. The Constitution is founded on fundamental values of human dignity, the achievement of equality and the advancement of human rights and freedoms. Importantly, the Bill of Rights binds the legislature, executive, judiciary, all organs of state as well as natural and juristic persons to the extent applicable. The South African Constitution thus offers a unique framework for advancing corporate accountability in respecting human rights.
The United Nations’ Guiding Principles on Business and Human Rights (UNGPs) – the first global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity – is rooted in the pillars of Protect, Respect, and Remedy. These pillars align remarkably with the South African Constitution: the State’s duty to protect is mirrored in section 7(2), the corporate responsibility to respect finds expression in section 8(2)’s horizontal application to private actors, and access to remedy is enshrined in section 34’s guarantee of access to courts. The Constitution’s Bill of Rights therefore functions as a de facto BHR framework, enabling practitioners to leverage domestic constitutional law to operationalise the UNGPs in context-specific ways.
From soft law to hard law: The diversification of enforcement mechanisms
BHR practices have traditionally been informed by international soft law instruments and voluntary frameworks, with the result that enforcement of non-compliance and accountability for human rights violations has been difficult to secure notwithstanding the practical effectiveness of these tools. However, various legislative and non-legislative mechanisms are increasingly being used to impose BHR obligations on, and enforce them against, corporate actors.
In the African context, the human rights which are enshrined in Constitutions are given effect through a plethora of comprehensive legislative frameworks, where statutory duties of care and compliance obligations are imposed on corporate actors. For example, South Africa’s constitutional right to a healthy and sustainable environment is progressed and realised through the National Environmental Management Act, several other specific environmental management Acts and supporting Acts, and a multitude of regulations, norms and standards published under this principal legislation. Various organs of state, and most prominently the government’s Environmental Management Inspectorate, are empowered thereunder to institute administrative, civil and criminal compliance and enforcement actions against non-compliant entities. South Africa’s National Environmental Management Act further provides for a direct ‘legal standing’ provision, permitting any person or group to seek relief in the public interest or in the interest of protecting the environment, and recently saw its first successful private prosecution in the case of Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd – in which BP was charged with constructing and upgrading 21 filling stations without the required prior written environmental authorisation, and in which BP was ultimately convicted on 17 of the 21 counts.
Class action litigation, although still relatively new to the African legal landscape, is rapidly growing into a bespoke field of the law that is finding traction and increased application, predominantly in respect of constitutionally enshrined rights, employee benefits and civil damages claims. In January 2023, certification commenced on a class action instituted against Anglo American over alleged historic lead poisoning of women and children in Kabwe, Zambia, though the application was ultimately dismissed and has since been taken on appeal.
In a recent landmark decision of the UK High Court in Município de Mariana and others v BHP Group (UK) Ltd and BHP Group Ltd, BHP Group Limited was sued as the parent company of Samarco, following the collapse of a tailings dam at the Samarco project in Brazil. The court found that BHP and Vale, as joint controllers of Samarco, exercised effective power and control over Samarco, giving rise to their responsibilities for the activities of the company. Similar approaches have been taken in the context of African operations, including the UK Supreme Court’s decision in Okpabi and others v Royal Dutch Shell Plc and another, where the court stated that a parent company can owe a duty of care in relation to the activities of its subsidiary. Traditional corporate law restrictions on ‘piercing the corporate veil’, and legal interpretations of the scope of directors’ fiduciary duties, are fast evolving to respond to the human rights implications of corporate conduct. By way of further example, several formal legal opinions issued by senior counsel – known as ‘counsel opinions’ – have been published, including in South Africa, proposing that existing directors’ fiduciary duties already require consideration of material climate-related risks and, more recently, biodiversity/nature loss risks under applicable companies legislation. Many of these counsel opinions are accessible from the Commonwealth Climate and Law Initiative and the Centre for Environmental Rights.
African jurisdictions with progressive constitutional and supporting legislative frameworks are thus demonstrating how domestic legal architecture can create pathways for corporate accountability that operate independently of dedicated BHR legislation.
Commercial contracts as instruments of human rights protection
Perhaps one of the most significant BHR practices finding application in African regions lies in the development of private commercial and contractual law in project development and financing arrangements. International investors and stakeholders are increasingly imposing dedicated BHR obligations and controls in contracts and project documents. Examples include requiring human rights due diligence to be undertaken before releasing financing for a development project; requiring operational project documentation to be updated to align with best-practice standards for stakeholder engagement, security management, and grievance management; and requiring procurement and tender documentation in supplier contracting to include human rights controls.
This contractual embedding of BHR obligations creates legally binding pathways for responsible business conduct that operate independently of legislative mandates, and include novel implications for human rights violations that do occur, such as contract/business relationship termination, loss of access to funding, and loss of market access. Beyond government policy and legislative frameworks, commercial agreements offer a direct channel to embed human rights due diligence and accountability measures into business’ operational practices; while incorporating corporate policies and standard operating procedures into contractual provisions allows more mature stakeholders to exercise leverage (as supported in the UNGPs) over less-advanced corporate actors.
Industry associations are also playing a key role in developing standards and establishing rules for best practices, with corporate membership often requiring compliance with conditions, rules and codes of conduct that have reputational and commercial implications for breaches. This demonstrates how non-state actors can drive accountability through market-based mechanisms.
Leveraging these BHR corporate governance practices has highlighted the business case for operationalising BHR, presenting African businesses with key opportunities such as enhanced global market access by being positioned as preferred partners for global buyers and investors that value human rights safeguards; improved risk management through systematic identification and mitigation of human rights risks; attracting responsible investment from development finance and impact investors; and alignment with the African Charter on Human and Peoples’ Rights and international benchmarks.
Rethinking access to remedy through participatory design
Access to remedy remains the most under-fulfilled pillar of the UNGPs across Africa. Power asymmetries, lack of meaningful participation, and limited community trust have hindered access to effective remedy. Many company-led mechanisms are said to operate more as reputational risk management tools than genuine platforms for justice, with cited challenges including the persistent exclusion of affected persons from designing or overseeing remedy processes; language and legal literacy barriers; limited enforcement of decisions; and the ‘corporate capture’ of grievance systems.
Remedies must be applicable to, align with, and meet the needs of the people who may need to use them; and constructs such as obtaining the ‘social licence to operate’, which underpins many African development projects, have elevated the need to obtain and maintain the trust of local communities to critical cornerstones of business activity. African courts are increasingly delving into community consultation and participation requirements, overturning development authorisations where failures arise.
Free, Prior and Informed Consent (FPIC): Reclaiming African decision-making traditions
FPIC represents a recognition of, and return to, respect for traditional African governance protocols and customs informing decision-making. Yet challenges remain, as limited guidelines and prescriptions exist on applying the requirements of FPIC, which are further stressed by contextual hurdles regarding community representation and participation of vulnerable and marginalised groups.
While South African courts have articulated the requirements of meaningful consultation, legislative requirements often create nuanced challenges for interpreting and applying the principles of FPIC in specific sectoral contexts, such as understanding the interoperability of South Africa’s mining, environmental and community governance legislation when applying the principles of FPIC in the extractives industry.
Participatory remedy design that highlights promising practices for ensuring power-aware and context-sensitive access to remedy regimes, and regional framework integration that identifies opportunities for African stakeholders to align international BHR instruments with regional frameworks and realities, offers models for remedy design that centre affected communities.
The critical minerals challenge: A test case for African leadership
Meeting the rising global demand for critical minerals, while upholding human rights and leaving positive legacies behind, presents immeasurable opportunities for African governments and businesses to reap the benefits of sustainable development for Africa’s peoples. South Africa’s Just Transition Framework, adopted in 2022 and launched at COP27 in Sharm el-Sheikh, was hailed by the international community as progressive in placing people at the focus of strategies targeting transition sectors most at risk of leaving communities behind. Its novelty lies in its people-centred design, explicitly prioritising the protection of workers and communities in carbon-intensive sectors, ensuring that the benefits and costs of the energy transition are shared equitably. Unlike many similar frameworks adopted elsewhere, it treats social justice and economic inclusion as preconditions for, rather than by-products of, the energy transition.
Transnational legislation and regional responses
Recent legislative developments, including the EU’s Corporate Sustainability Reporting Directive, Corporate Sustainability Due Diligence Directive, and the European Green Deal, will exert increasing extraterritorial influence on global supply chains, presenting both opportunities and challenges for African stakeholders seeking to converge international BHR standards with regional frameworks.
The integration of BHR considerations and controls in regional frameworks such as the African Continental Free Trade Area Agreement (aiming to eliminate trade barriers across the continent and to foster trade between African counties) and South Africa’s Just Transition Framework represents moves by African stakeholders to contextualise the response to calls for strengthening BHR practices, rather than blindly implementing global standards and requirements which may not be fit-for-purpose in recognising the unique socio-economic circumstances of African markets.
Conclusion
These approaches to BHR underscore the urgent need for businesses, governments, and civil society to continue to work collaboratively to embed human rights into Africa’s development trajectory. As the spirit of ‘Ubuntu‘ (often translated as “I am because we are”) — the Southern African philosophy encapsulated in the phrase ‘Umuntu ngumuntu ngabantu‘ (‘a person is a person through other persons’), which holds that individual humanity is inextricably bound to communal well-being, shared responsibility, and interdependence — calls for, the time is now to drive the philosophy of shared humanity. The African experience demonstrates that innovation often emerges from constraint—from limited resources, from regulatory gaps, from communities being left behind in development agendas.
The need to enforce, and potentially reform, domestic law remains a critical stop-gap. As the global community grapples with mandatory human rights due diligence, climate-related corporate duties of care, and access to remedy for transnational violations, African legal frameworks, jurisprudence, and practices offer valuable models for consideration. By engaging in multi-stakeholder co-operation and leveraging regional legal frameworks, African companies and transnational corporations operating across the continent can align with emerging international norms while remaining responsive to local realities, meaningfully contributing to sustainable development and community well-being, and fulfilling the promise of business as both a driver of prosperity and a guardian of fundamental human rights.
