Rethinking Access to Remedy Through a Lens of Power, Participation and Regional Alignment in Africa

Session partner:

• Webber Wentzel

Background 

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The session examines the limitations of access to remedies, drawing on recent studies, examples from corporate practice and research, to:

Demonstrate how power asymmetries, lack of meaningful participation, exclusion of context-sensitive approaches, and limited community trust in companies have hindered access to effective remedies through: 

• The persistent exclusion of affected persons from designing and participating in remedial processes; 

• Language and legal/technical literacy as barriers to accessing effective remedies; 

• Limited enforcement of decisions through judicial, quasi-judicial and non-judicial processes; and 

• The capture of grievance systems;The corporat

Discuss promising practices, such as: 

• Examples of how corporations and industry standard-setting bodies implement their commitments to the UNGPs;

• The use of strategic litigation such as public interest litigation by NGOs and transnational litigation by host state communities in home state jurisdictions;

• Independent monitoring structures in cross-border infrastructure projects; and

• Culturally grounded grievance processes in local and indigenous communities;

Consider the opportunities and challenges for business operating in Africa seeking to comply with or apply international BHR laws and standards, and the need to make them more responsive to the African context. This will be based on:

• Important developments relating to international standards of Free, Prior and Informed Consent and whether they are fit for purpose for realities in the Continent; 

• The many international standards adopted by African governments that contain innovative remedies (e.g., the dumping of toxic waste); and 

• Contextualising the Right to Remedies in alignment with Africa-specific instruments and guidance (such as the African Continental Free Trade Area Agreement (AfCFTA), the African Charter on Human and Peoples' Rights and the Communique by the African Working Group on Extractive Industries, Environment and Human Rights Violations to African state representatives at the UN on how they should approach the BHR treaty, climate change and human rights, and other business-related issues).

Key Objectives
 

• Structural barriers: Identify and analyse the power asymmetries and systemic exclusions that prevent effective access to remedy in African contexts.

• Participatory remedy design: Demonstrate the need to redesign access to remedy through a participatory and context-sensitive lens, that mitigates the power imbalance between business entities and affected communities, and what this means in practice.

• Regional remedy frameworks: Examine how African regional instruments can be leveraged to strengthen access to effective remedies for business-related human rights violations; and

• Practical solutions: Identify concrete strategies for safeguarding communities' access to remedy within cross-border contexts

Guiding Questions
 

• What are the barriers that to-date have prevented effective access to remedy in African contexts, particularly for host communities and vulnerable or maginalised groups?

• In the context of rapidly evolving mandatory human rights due diligence laws in multiple international jurisdictions, what are some of the practical challenges which businesses operating in Africa are facing in seeking to integrate global BHR and access to remedy standards with domestic legal and operational contexts?

• Are there any examples of promising approaches by corporations and industry standard-setting bodies in translating their commitments to the UNGP-aligned access to remedy expectations into operational practice?

• Where enforcement of access to remedy regimes is lacking, how has strategic litigation been adopted as an alternative route to seeking and securing effective access to remedy?

• How can remedial mechanisms be redesigned to ensure meaningful participation by affected communities from design through to implementation and oversight?

Expected Outcomes

• Enhanced understanding of participatory remedy: Highlighting promising practices and available avenues for ensuring participatory, power-aware and context-sensitive access to remedy regimes;

• Regional framework integration: Identifying opportunities and challenges for African stakeholders to align international BHR remedy instruments with regional frameworks and realities;

• Practical recommendations: Development of concrete strategies for implementing participatory remedy mechanisms that address the specific challenges faced in African contexts.

Background to the Discussion
 

While BHR legal frameworks, judicial reforms, and non-judicial mechanisms have proliferated, they often fail to reach the very individuals they are designed to serve. This session interrogates the current state of access to remedy in Africa, arguing that many formal avenues — whether through judicial, quasi-judicial or non-judicial mechanisms— remain structurally misaligned with the lived realities of marginalised communities.
 

Opportunities are presented to redesign access to remedy regimes and practices to align with African instruments, frameworks and realities, to ensure that they are effective, participatory, power-aware and context-sensitive..  

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Additional Background Documents

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• UN General Assembly, Human rights and transnational corporations and other business enterprises, 2017 (link: Document Viewer)

• Resolution on Business and Human Rights in Africa – ACHPR/Res.550 (LXXIV) 2023

• Advisory note to the African group in Geneva on the legally binding instrument to regulate in international human rights law, the activities of transnational corporations, Nov 04, 2019

• Resolution on Illicit Capital Flight from Africa ACHPR/Res.236(LIII)2013

• Illicit Financial Flows: Report of the High Level Panel on Illicit Financial Flows from Africa. Addis Ababa. UN.ECA. 2015

• Agreement Establishing the African Continental Free Trade Area ; Date of Adoption: March 21, 2018 ; Date of last signature: February 05, 2021 ; Date entry into force May 30, 2019

• James Thuo Gathii, ‘Agreement Establishing the African Continental Free Trade Area’, International Legal Materials, October 2019, Vol. 58, No. 5 (October 2019), pp. 1028-1083

• African Commission on Human and Peoples' Rights adopted Resolution on a Human Rights-Based Approach to the Implementation and Monitoring of the Africa Continental Free Trade Area Agreement, March 2023

• A/78/160: Role of business in realizing the right to development - Report of the Special Rapporteur on the right to development, Surya Deva

• Timon Forstera Alexander E. Kentikelenis, Thomas H. Stubbs, Lawrence P. King, ‘Globalization and health equity: The impact of structural adjustment programs on developing countries’, Social Science & Medicine 267 (2020) 112496

• Meyersfeld B. Empty Promises and the Myth of Mining: Does Mining Lead to Pro-Poor Development? Business and Human Rights Journal. 2017;2(1):31-53

• Meyersfeld, B. (2024). Corporations and positive duties to fulfil socio-economic rights: developing international human rights law. The International Journal of Human Rights, 29(2), 240–281

• Bonita Meyersfeld, ‘Committing the Crime of Poverty: The Next Phase of the Business and Human Rights Debate’, in Business and Human Rights Beyond the End of the Beginning, ed. César Rodríguez-Garavito (Cambridge: Cambridge University Press, 2017)

• Monique Deveaux, ‘Poor-Led Social Movements and Global Justice’ Political Theory, 46 No. 5 (2018)

• Lotta Moberg, ‘The Political Economy of Special Economic Zones’, Journal of Institutional Economics 11 No. 1 (2015). World Bank Group, ‘Special Economic Zones: An Operational Review of Their Impacts’ in Foreign Trade, FDI, and Capital Flows Study (2017), available at https://elibrary.worldbank.org/doi/pdf/10.1596/29054

• Fola Adeleke, ‘Rethinking the Role of Business Enterprises in the Fight against Inequality: A South African Perspective’, in Business and Human Rights Law and Practice in Africa, eds. Damilola Olawuyi and Oyeniyi Abe (Cheltenham, UK: Edward Elgar Publishing, 2022), 108

• African Human Rights Law Journal, The right to an effective remedy under the African Charter on Human and Peoples' Rights, 2006 (link: The right to an effective remedy under the African Charter on Human and Peoples' Rights - African Human Rights Law Journal (AHRLJ))

• International Justice Resource Center, Exhaustion of Domestic Remedies in the African Human Rights System, 2017 (link: https://cglj.org/wp-content/uploads/2017/11/7.-Exhaustion-of-Domestic-Remedies-African-System.pdf)

• Case study: FPIC in focus – implications of a recent Canadian Federal Court decision for Australian stakeholders (link: FPIC in focus: implications of a recent Canadian Federal Court decision)

• David Birchall, ‘Human Rights and Political Economy: Addressing the Legal Construction of Poverty and Rights Deprivation’, Journal of Law and Political Economy, 3(2) (2022): 393, 398

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