ExPEERience Talk #14 – Protecting Indigenous Rights to Land and Natural Resources: perspectives on the carbon market in Kenya

  • When? April 18, 2024 – 7.am (New York) / 12.pm (Tunis,Kinshasa) / 1.pm (Brussels) / 2.pm (Nairobi, Kampala)
  • Language: English
  • Online event – Mandatory registration

This Justice ExPEERience Talk aims to provide an overview of rights of indigenous communities to physcical and economical access to land and other natural resources, focusing specifically on their intersection with carbon markets land use in Kenya. This is prompted by recent events such as the eviction of the Ogiek people from the Mau Forest in November 2023.

Moderated by Jim India from ASF’s East Africa office.

Indigenous communities in Africa, notably the Ogoni (Nigeria), Endorois (Kenya), and Ogiek (Kenya), have long faced challenges regarding their rights to land and natural resources. The eviction of the Ogiek people from the Mau Forest serves as a significant example of the ongoing struggles indigenous communities face, especially concerning natural conservation projects and the emergence of carbon markets. The intentions of Kenyan authorities to negotiate carbon deals in protected areas further highlight the connection between indigenous rights and carbon markets.

In 2017 the Ogiek won a landmark case against the government efforts to evict them from their ancestral land in the Mau Forest. The African Court of Human and People’s Rights ruled they were entitled to live on the land, and the government had violated their rights by evicting them. In 2022 the court ordered the Kenyan government to pay reparations to the community for the suffering caused by forced evictions. It also ordered the government to consult the Ogiek in respect of any projects on its land.

But despite those victories in court, the Kenyan government has launched a new eviction campaign in November 2023 leaving hundreds without a home and nowhere to go.

  • Provide an overview of the Kenyan context, particularly regarding the protection of indigenous communities’ rights and environmental justice, analyzing recent events such as the eviction of the Ogiek people from the Mau Forest.
  • Examine the impacts of carbon markets in Kenya, but potentially also elsewhere in East Africa, and the interrelation between state responsibility and companies
  • Identify opportunities for the protection and promotion of indigenous rights within carbon  market initiatives in the region.

This talk aims to shed light on the complex relationship between carbon markets and indigenous rights in Kenya, with possible lessons to be learned for other countries in the region, and beyond. By incorporating perspectives from academic researchers and representatives of indigenous communities, the event seeks to contribute to ongoing discussions on environmental justice and human rights in the context of climate change mitigation efforts, which is also increasingly central to ASF’s work on business and human rights.

Improving Access to Remedy for Tanzania’s Extractives Sector

As the extractive sector in Tanzania continues to grow, due to the demand for critical minerals in the energy transition, and as the construction of the East African Crude Oil Pipeline (EACOP) is starting, access to remedy for aggrieved individuals and communities should be key priority for the Tanzanian government and private companies.

The research that led to this report was undertaken in four mineral-rich regions in Tanzania: Mara, Shinyanga, Tanga and Manyara. It focused on three extractive projects, namely Barrick North Mara Gold Mine, Williamson Diamond Mine and EACOP. Despite these projects’ potential benefit for the socioeconomic development of the country, they have been linked to numerous human rights violations, including forced evictions, environmental degradation and violence towards communities, in particular women.

The report provides an overview of how state-based judicial mechanisms (courts), state-based non-judicial mechanisms (state institutions with a human rights mandate) and non-state-based mechanisms (company grievance mechanisms) function. The study then explores the levels of awareness of communities and legal aid providers (LAPs), as well as the barriers they face when attempting to access these different mechanisms.

The study findings show that community members and LAPs often struggled to access courts, due to the lack of financial means or access to a lawyer, even if they have sufficient knowledge on the role of the judiciary. There is, on the contrary, a general lack of awareness among communities and LAPs about most state-based non-judicial mechanisms: they are unaware how these bodies function, how to access them and what kind of remedies they can provide. Affected persons primarily turn to local government authorities before any other mechanism, given the easier access.

The research also analyzed operational grievance mechanisms (OGMs), directly managed by the companies. The research found that companies had not sufficiently engaged with local communities to raise awareness on the existence of these OGMs and had failed to sufficiently consult or involve local legal aid providers in the design of the OGM, which would have contributed to increasing the engagement with these mechanisms.

Based on the conclusions of the research, ASF recommends to all remedy actors to improve awareness-raising about their access and functioning, by putting in place effective and targeted outreach strategies. In order to improve the performance, effectiveness and accessibility of the various complaint systems, these bodies should create regular feedback mechanisms, which can improve the functioning of the remedy mechanisms. The government of Tanzania, in particular, should enhance access to state-based mechanisms and ensure compliance, by both state and non-state actors, with their decisions, to increase the credibility and the confidence of affected communities in the different remedy mechanisms.

ASF’s East Africa regional hub

This article was published in ASF’s 2022 annual report.

In recent years, ASF has progressively adopted a regional approach to its activities in East Africa. To lead the organisation development in the region and enable the implementation of strong and coherent regional strategies, a regional hub was created in Kampala in 2021. It is currently made up of three staff, in addition to the Regional Director and the respective Country Director for Uganda and Coordinators of Programs for Kenya and Tanzania.

Countries in East Africa share historical, economic, political, social and cultural ties, and have become increasingly integrated. In this context, issues of interest to ASF, such as the governance of natural resources, detention, or security and liberty, may cut across several countries. Lessons learnt when implementing programs in one country can therefore be of great significance to develop our action in other contexts.

Since its creation, a key role of the Regional Office has been to strategically compile and redistribute knowledge across all programs. This has allowed for synergies to be developed, while also leaving space for the contextualization of each intervention.

In addition to this, the creation of new roles dedicated to specific technical functions within the regional team has provided a way for ASF to improve methodological support to the various country teams, in areas such as research, monitoring and evaluation, strategic litigation, and advocacy.

A key priority for the Regional Office is also to identify opportunities for development at a regional level, including through the drafting of multi-country and regional projects. In March 2022, ASF launched a two-year project funded by the Belgian DGD entitled ‘Protecting Civic Space: a Public Interest Litigation Approach’. Covering three countries in the region, the project aims to contribute to the advancement of the rule of law in East Africa through mobilizing civil society around regional human rights treaty bodies, mechanisms and instruments.

Moving forward, the Regional Office intends to keep strengthening ASF’s presence at a regional level in East Africa. Whether through advocacy, strategic litigation, or other engagements with external stakeholders, efforts will continue throughout 2023 to ensure that ASF’s work is visible and impactful in the region.

Morocco – Corporate social and environmental responsibility

This article is part of ASF’s 2022 annual report.

In Morocco, ASF is committed to promoting the protection of human rights in the private sector, in order to contribute to the full achievement of the United Nations’ Sustainable Development Goal 8: Decent Work and Economic Growth.

In partnership with the Rabat Social Studies Institute (RSSI), ASF is working on the issue of corporate social and environmental responsibility (CSER). CSER aims to ensure economic development while protecting the human rights of populations affected by corporate activities. Approaching corporate responsibility from the perspective of human rights, as recognised by international law, provides a legally stable framework likely to prevent human rights violations that could be committed by economic actors.

Morocco has ratified several international conventions relating to respect for human rights and sustainable development. These include the UN Sustainable Development Goals, the UN Guiding Principles on Business and Human Rights, the guiding principles of the Organisation for Economic Co-operation and Development (OECD) and the core labour standards of the International Labour Organisation (ILO).

At national level, Morocco has adopted a series of programmes and strategies for sustainable development and energy transition. The country has drawn up codes of good practice for governance and a new development model that gives a central place to social and environmental considerations. But despite these encouraging initiatives, national and international CSER commitments have yet to be fully implemented.

As in its other countries of operation, ASF seeks to contribute, with its local partners, to promoting compliance with the social and environmental standards in force, whether their origin is the national legislative framework or international law. With this in mind, ASF is organising a series of conferences on “Business and human rights in Morocco” with the RSSI.

The events will bring together a wide range of stakeholders: institutional actors, companies, subsidiaries of multinationals, professional associations, trade unions, journalists, academics and members of civil society. All aspects of CSER will be addressed: the normative dimension, the ethical dimension, the environmental dimension, the social dimension and the participatory dimension, with a focus on the role of civil society and consumer protection.

ASF’s annual report is available!

The Avocats Sans Frontières team is delighted to present its latest annual report.

We have come a long way since ASF was founded in 1992 by a group of Belgian lawyers. Over these 30 years, hundreds of people have contributed to making the organisation what it is today: a militant organisation active in a dozen countries, working to promote access to justice and the rule of law based on human rights, in close collaboration with local actors.

These thirty years of action, the local roots we have developed and the links we have forged with human rights defenders from the four corners of the world give us a great deal of strength and confidence as we look to the future and continue to deploy impactful action in the service of populations in vulnerable situations (women, children, the LGBTQI+ community, ethnic minorities, people in detention, people in migration, etc.).

But the challenges are many. All over the world, civil society organisations and human rights defenders are faced with worrying developments and trends: the rise of authoritarianism, the shrinking of civic space, growing public distrust of institutions, heightened social tensions, etc.

Defenders of human rights and access to justice have to work in contexts that are increasingly hostile to them. The very notions of human rights and the rule of law are being called into question. Activists, lawyers and journalists working to defend the fundamental rights of populations in vulnerable situations are increasingly systematically targeted by repressive policies.

Every page of this report bears witness to the vigour of the flame that drives those who are committed to upholding human rights at the very heart of our societies, at the risk and peril of their own freedom. This report is a tribute to each and every one of them.

ExPEERience Talk #10 – Corporate accountability and human rights: the case of the textile industry in Tunisia

  • When? 22 June 20231pm (GMT+1 – Tunis) ; 2pm (GMT+2 – Brussels)
  • Language of the presentation: French
  • On Big Blue Button

At the 10th ExPEERience Talk, Nadia Ben Halim (consultant) and Zeineb Mrouki (Programme coordinator at ASF Tunisie) will present a study on corporate responsibility with regard to human rights in the textile sector in the governorate of Monastir in Tunisia.

The textile industry is now worth 3,000 billion dollars and is one of the world’s most important economic sectors. In Tunisia, clothing production accounts for a quarter of the country’s industrial output in terms of gross domestic product, making it a central sector of the Tunisian economy. However, for years, human rights organisations and official reports have documented systemic violations of workers’ rights (undignified working conditions, informal and illegal work, etc.). Among the companies guilty of flagrant violations of workers’ rights are many subcontractors of multinational companies. These systematically fail to meet their obligations and apply the duty of care throughout the supply chain, as required by international standards.

The study, based on documentary research, field surveys and, in particular, consultations with women workers in the textile sector in the governorate of Monastir, reveals systematic violations of workers’ rights, including the lack of social security cover, unfair dismissals, failure to account for overtime, and discrimination specifically targeting women. Recommendations are made to combat the impunity of companies in the face of the legal violations they commit.

This study is part of the PREVENT – Pour une Responsabilité et une Vigilance des Entreprises project, carried out in collaboration by Avocats Sans Frontières (ASF), the Tunisian Forum for Economic and Social Rights (FTDES) and I Watch. In particular, this project has led to the establishment of a mechanism to provide access to information and legal assistance to those most exposed to violations by industrial companies, particularly in the textile sector.

The study will be published on the ASF website at the end of June. You can already read the policy brief on the ASF website: “Les travailleueur‧euse‧s du textile tunisien en quête de dignité et de justice face à des pratiques abusives et discriminatoires”.

Policy Brief: Tunisian textile workers in search of dignity and justice in the face of abusive and discriminatory practices

Perenco: The social and environmental impact of the French oil company’s activities abroad

Perenco has been in the news for several weeks. An environmental investigation carried out by EIF (Environmental Investigative Forum) with the support of the media Investigate Europe and Disclose has led to the publication of damning information on the French company’s activities in the Democratic Republic of Congo[1]. And the NGOs Sherpa and Friends of the Earth have taken legal action against the company for failing to carry out due diligence on its oil exploration and extraction activities abroad[2].

Poor governance in the management of natural resources, conflicts of interest, pollution and environmental damage linked to its activities, failure to involve the affected communities in the decision-making processes linked to the management of their land, lack of accountability with regard to the normative framework in force, etc. The list goes on.

In the field, Avocats Sans Frontières has monitored numerous violations of the fundamental rights of communities affected by the poor governance of natural resources linked to the company’s activities, particularly in the Muanda territory in the Democratic Republic of Congo.

Several studies and reports (RENAD, CEPECO, CCFD-Terre Solidaire, and even a report by the Congolese Senate) reveal devastating practices, both for the environment and for the health and livelihood of local communities[3]. Among the violations reported: infringements of the right to a healthy environment, the right to health, the right to work and the right to dignity.

In the Muanda territory, the company has build power dynamics that systematically are to the disadvantage of local communities. The company does not fulfil its obligations under Congolese law and does not respect relevant international principles.

There are serious failures to consult and dialogue with the populations affected by its activities. The company has refused to respond to letters and requests for meetings from various civil society organisations and community members on many occasions.

The company famously refused to be involved in the discussions that took place during a round table organised in Kinshasa in July 2022 on the theme of natural resource governance which was attended by local, institutional and civil society actors.

This is a clear violation of Congolese law, which requires Perenco to consult the various stakeholders, including the affected communities.

In this regard, ASF commends the action initiated by Sherpa and Friends of the Earth before the French courts for ccological damage.

ASF would like to remind all stakeholders, including economic actors, the Congolese state and local representatives, of their obligations and their duty of accountability, in particular to promote and ensure a system of governance based on the fundamental rights of local populations.

In this regard, ASF makes the following recommendations:

– Implement the ministerial decree that organises the functioning of the mechanism for managing funds dedicated to community development (Cecetem);[4]

– Implement the ministerial order for the implementation of a follow-up to the recommendations of the tripartite round table (communities, companies and government);[5]

– Strengthen the mechanisms for collecting and processing community complaints, particularly by making them transparent and accessible to all;[6]

– Strengthen the state’s technical services to ensure transparency throughout the oil and gas industry’s value chain and to suppress all forms of impunity for economic actors. 

ASF’s action and role regarding Perenco’s activities

The multinational oil company has been under scutiny for many years because of the opaque and controversial management of its activities in several countries.

ASF, in partnership with Sherpa and Friends of the Earth, had tried in vain to demand that the company be transparent about its activities abroad. 

In 2018, ASF submitted a complaint to the French National Contact Point (NCP) of the OECD to ensure that the company fulfils its duty of transparency in relation to its oil and gas exploration and production operations. In March 2021, ASF and IWatch finally decided to withdraw from the procedure, highlighting the structural dysfunctions of this tool from the OECD[7].

In January 2022, the French NCP published its final statement in which it specified that Perenco did not comply with several recommendations of the OECD Guidelines regarding its activities in Tunisia, in the Kebili region.

The NCP made a series of recommendations to the company:

– Perenco must comply with its due diligence in its exploration and exploitation activities;

– Perenco shall prevent and further mitigate social and environmental risks arising from the activities of its operating subsidiaries;

– Perenco should follow up on appropriate remedial or corrective actions in the event of adverse environmental, labour and human rights impacts, including through the transparent sharing of information on its activities[8].

Avocats Sans Frontières reaffirms its commitment to the fight against the impunity of economic and industrial actors. In the field in the Democratic Republic of Congo, Tunisia or Uganda, our teams continue to support and accompany communities affected by human and environmental rights violations suffered in the context of industrial extractive activities.

[1] Perenco : révélations sur les ravages du groupe pétrolier en RDC, https://disclose.ngo/fr/article/perenco-revelations-sur-les-ravages-du-groupe-petrolier-en-rdc, 9.11.2022 ; Perenco files: Les secrets toxiques d’un géant du pétrole, https://www.investigate-europe.eu/fr/2022/perenco-files-petrole/, November 2022.

[2] https://www.asso-sherpa.org/prejudice-ecologique-rdc-perenco-assignee-en-justice.

[3] Renad, Cris d’alarme des Communautes Locales : Impacts de Perenco Rep sur le cadre de vie des communautés de Muanda en r.D.Congo, https://congominespdfstorage.blob.core.windows.net/congominespdfstorage/CRIS%20D%E2%80%99ALARME%20DES%20COMMUNAUTES%20LOCALES%20(2).pdf;

CEPECO, Rapport sur l’exploitation pétrolière à Moanda Bas Congo, https://vdocuments.mx/rapport-sur-lexploitation-petroliere-a-moanda-bas-congo.html?page=1;

CCFD, Pétrole à Muanda: la justice au rabais, https://ccfd-terresolidaire.org/wp-content/uploads/2014/07/petrole_muanda_201113.pdf ;

Commission d’enquête sur la pollution causée par l’exploitation pétrolière à Muanda dans la province du Bas-Congo : https://www.amisdelaterre.org/wp-content/uploads/2022/08/201310-rapport-senat-rdc-commission-enquete-senatoriale-pollution-perenco.pdf.

[4] https://congomines.org/system/attachments/assets/000/000/792/original/Gouvernement-Sud-Kivu-D%C3%A9c-2013-Arr%C3%AAt%C3%A9-Fonds-d%C3%A9veloppement-communautaire.pdf?1440409786.

[5] https://pro.leganews.cd/ressources-naturelles/gaz-hydrocarbures/arrete-ministeriel-n008-dbn-cab-min-hyd-2022-du-02-juin-2022-modifiant-larrete-ministeriel-n-007-dbn-cab-min-hyd-2022-du-11-mai-2022-portant-creation-organisation-et-fonctionnement-du/

[6] https://asf.be/publication/press-release-ngos-call-out-to-perenco-end-the-opacity-to-put-a-stop-to-the-impunity-of-the-multinational/

[7] https://asf.be/publication/press-release-withdrawal-from-the-proceedings-before-the-french-ncp/

[8] https://www.tresor.economie.gouv.fr/Institutionnel/Niveau3/Pages/3c98c1c4-0d82-4fd2-9f7e-94b924152f2c/files/abb8db3e-2ff1-4986-b84c-ed4afeb2666c

Putting the interests of local populations at the heart of natural resource exploitation: Transparency, accountability and protection of rights

Congo natural resources

This article was originally published in the Annual Report 2021 of Avocats Sans Frontières.

ASF has been active in the field of natural resource governance in the Democratic Republic of Congo (DRC) since 2018.
Its activities in this area are mainly concentrated in 3 regions: in the provinces of Ituri and Haut Uélé in mining sector and in the province of Central Kongo in the hydrocarbon extraction sector.

The action implemented by ASF and its partners in these three provinces is based on the fight against corruption and human rights violations caused by the activities of the extractive industry. This action is deployed mainly through three types of activities.

(i) ASF and its partners set up awareness and information campaigns for local communities on their procedural and substantive rights, as well as on environmental issues related to the natural resource governance.

(ii) Members of affected communities are encouraged to participate in the governance of natural resources in their region and to challenge their representatives to ensure that the principles of transparency and accountability are respected.

(iii) ASF and its partners strengthen the protection of the rights of local community members through the prevention and resolution of conflicts related to the exploitation of natural resources.

Recent legislative developments are moving in this direction. In 2015, a law on the general regime for hydrocarbons was enacted. This obliges oil companies to take into account the rights and welfare of local communities and to respect sustainable environmental management. In 2018, a law was passed to strengthen the rights of local communities affected by the mining sector. It aims to put in place regulatory mechanisms to reduce the negative impacts of mining projects on human rights and to ensure that local residents benefit from the economic profits of mining through the funding of various community development projects.
A solid legislative base to promote transparent management of natural resources that respects human rights and the environment exists in the DRC, but these laws have not yet produced the desired results.

This is why ASF is conducting advocacy work with local and national decision-makers. Several advocacy actions were carried out in 2021, in particular to ensure that compensation for environmental damage caused by extractive activities is effectively paid to local communities.

EU Due Diligence legislation : the EU Commission unveiled its proposal but serious gaps persist

On Wednesday 23 February, the European Commission presented its proposal for a Directive on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937. It imposes a principle of due diligence on companies with regard to human rights and environmental violations. This long-awaited text, whose initial ambition we commend, contains many gaps that could limit its scope and impact.

The purpose of the principle of due diligence provided for in the directive is to oblige companies to put in place measures to prevent human rights and environmental abuses committed by their subsidiaries, suppliers or direct or indirect subcontractors in the context of their activities in the European Union or abroad. In case of fault, companies could be held liable and could be required to compensate those affected.

In particular, the Directive will allow engaging the civil liability of companies at fault. However, the civil liability regime settled risks to be limited in scope. If a company’s business partner has contractually agreed to abide by the company’s code of conduct, the company’s civil liability would no longer be incurred. The directive also fails to take into account the many obstacles limiting victims’ access to such remedies: high litigation costs, the disproportionate burden of proof, lack of access to information, limited legal capacity, and limited limitation periods.

We also regret that the proposal does not provide a clear and satisfactory definition of the notion of direct and indirect commercial relationships between companies. This lack of transparency could also be an obstacle to victims’ effective recourse to justice.

Finally, the Directive would not apply to all companies. It is aimed at companies with more than 500 employees and a net turnover of more than EUR 150 million, and companies with more than 250 employees and a net turnover of more than EUR 40 million, but where a majority of their activities are in a high-risk sector (such as the textile industry, mining or agriculture). It therefore excludes small and medium-sized enterprises (SMEs) from the due diligence obligation.

More generally, ASF stresses the need to involve all affected – and potentially affected – groups, particularly those in vulnerable and structurally disadvantaged situations, as well as environmental and human rights defenders. The consultation obligations and the modalities for the participation of these groups are at this stage unsatisfactorily formulated.

The directive will now be debated and possibly amended by the European Parliament and EU Member State governments. We want to encourage them to take into account the various shortcomings of this first proposal in order to make the necessary amendments to achieve the ambition of this text.

Promoting access to justice through community-based mediation programs

In Uganda, access to justice is limited by the financial resources of local populations but also by the geographical distance to the courts of law. Most of the justice law and order services remain in the urban areas and central region with only 18.2% of the population in rural areas able to access a Magistrate court within a distance of 5km (compared to 56% in urban areas). This geographical distance creates a physical barrier that may result in victims or justice seekers relinquishing their rights.

Women face additional challenges as gender discrimination and patriarchal norms often discourage them to solve their disputes in State Courts. As it is considered inappropriate for women to talk about family matters in a public forum.

For all those reasons, many people use the informal justice system in order to resolve conflicts. And community-based mediators have a big role to play in order to assist local populations in their demands for justice, especially women who still face structural challenges on basis of gender and struggle to benefit from safe spaces to express their grievances.

ASF, through the DGD and LEWUTI mediation projects, provided mediation services to 633 people in 2020 in the Karamoja, Albertine and the Acholi Sub regions. Mediations conducted by ASF trained practitioners have been well received. Under the LEWUTI project for example, 94% of beneficiaries expressed satisfaction about the services.

The project design has been a key factor in its success. ASF community-based mediation program, funded by ENABLE and DGD, provides a basis for a consistent and human rights-based approach to mediation. It empowers trusted individuals within the community by enhancing their skills in dispute resolution. The mediators work within their communities and provide free mediation services to the community.

Additionally, they are each attached to a coach and a mentor to continuously provide guidance in the areas of law, and referral services they may make use of. The continuous mentorship and coaching has improved the quality of mediations as well as referrals undertaken by the mediators. It has additionally enabled them to gain trust within the community and with local leaders and elders who constantly refer cases to the ASF trained mediators.

The services provided by the community-based mediators came in very handy at the height of Covid-19 pandemic, especially because of the restrictions that resulted from the crisis. The mediators constituted critical first line legal support providers during the global pandemic, which created more inequalities in access to justice especially in the rural areas.