The role of corporations in the realisation of human rights in South Africa

The roundtable discussion began with welcome remarks by Ms. Gladys Mirugi-Mukundi of the Dullah Omar Institute, University of the Western Cape who introduced the participants. She explained the objectives of the roundtable as an opportunity to discuss the impact of the activities of corporations for the realisation of human rights in South Africa; to address conditions of poverty as a result of human rights violations by corporations and to examine the role of corporations in respecting the rights of individuals and communities that they affect, and to open a discussion on both ‘accountability mechanisms’ for ensuring that the activities of corporations are respectful of human rights and ‘opportunities for cooperation’ of citizens, civil society and government in the implementation of human rights obligations and responsibilities in order to foster democratic enforcement of socioeconomic rights.

To kick-start the discussion Prof. Ebenezer Durojaye, Dullah Omar Institute, University of the Western Cape introduced the topic and gave a brief background to the roundtable discussion on business and human rights. He noted that although corporations play a role in the attainment of socio-economic rights, economic development, employment creation and GDP growth. He questioned the role of corporations in relation to issues that may undermine human rights such as violations by corporations in the areas of child labour, environmental protection, extractives and forced labour.

He noted that traditionally, States are the subjects of international law and where there are treaties, the treaties are binding on States. In recent times, although treaties are concluded between states parties, there is growing concern that corporations need to take responsibility because it is corporations that operate on the ground and some of the activities of big corporations could undermine human rights.

He highlighted the recent development that Société Internationale de Télécommunications Aéronautiques (SITA) adopted two international approaches to business and human rights. The first approach is the traditional approach which looks at the International Covenant on Economic, Social and Cultural Rights which is binding on States. One of the obligations of States under the ICESCR is to respect, protect and fulfil socio-economic and cultural rights. The second approach is to hold corporations directly responsible and accountable regardless of State’s obligation to regulate the conduct of corporations. Non-binding rules such as the CESCR General Comment 24 (2017) and the United Nations Guiding Principles of Business and Human Rights (2011), serve as examples of that approach.

Representing Konrad-Adenauer-Stiftung Foundation Ms. Christina Teichmann gave a good will message and wished all the participants a successful roundtable discussion.

To present a balanced view of the interaction between business and human rights the panellists, Mr Mthunzi Mdwaba and Ms. Wandisa Phama provided juxtaposed positions and experiences of employers’ organisations on one hand, and human rights lawyers on the other hand respectively. Prof Durojaye facilitated the panel discussion session.

Mr Mdwaba, the CEO of TZoro IBC, and the Chairman of CSR and Business Human Rights Policy Working Group of the International Organisation of Employers (IOE), presented the employers’ and business perspective of human rights accountability mechanisms in business. Mr Mdwaba was assisted by Mr Mathius who weighed in via Skype from Geneva providing the background of the IOE, who started by distinguishing between corporate social responsibility (CSR) which is philanthropic, and human rights approach to business which is advocated by the IOE.

Mr Mdwaba noted that although the ILO has been in existence for almost 100 years, and has established various conventions to regulate labour and establish a social justice contract, violations are still occurring against workers and non-workers (such as communities). In light of this he advanced the notion of a ‘human investment agenda’ which should guide the operations of businesses. Conditions for such human investment agenda are that it must be attractive to both corporations and workers and it should allow for two way communication between the two, and must be proactive and not reactive and punitive. Such human investment agenda does not mean there should not be protest action. In fact, he used the example of Google to encourage protest action as a way of creating dialogue and finding solutions. He explained some of the challenges associated with the current polycentric governance of business and human rights, highlighting that the ‘spaghetti-bowl’ of laws and guidelines becomes confusing and sometime complicated for corporations which want to comply.

Ms. Phama, the Director at the Centre for Applied Legal Studies (CALS) Wits University spoke from a human rights perspective. Her presentation focused on the domestic level (South Africa). She began by explaining that the State is traditionally the protector and promoter of human rights, however, in a globalised world, this power has shifted to corporations. She noted that toppled relationship between the corporations and human rights in South Africa, is an indication that there is a missing the link between human rights and business.

Using the scandalous profiteering by Cash Paymaster Services (CPS) in the Black Sash case, the case of David Markas, an elderly man living with a disability in Wanderskip charged with instigating protests and blocking the road at the mine by De Beers, and the Xolobeni community fifteen year legal battle over titanium mining rights license issued without obtaining consent from the affected community, Ms Phama illustrated the extent of power that corporations have and noted that on the other side, the people who are most affected by the conduct of corporations tend to have significantly less power in contrast to the  power of corporations.

During the open discussion session, Prof Evance Kalula, University of Cape Town stated that too often human rights and labour activists forget the link between enterprise and socio-economic rights. That the reality is that multinational corporations are not creating jobs. Kefilwe Rasedie, University of the Western Cape commented that despite CSR being philanthropic, it is a commendable gesture. The gaps between large international organisations and small stakeholders are such that there is often a lack platforms were ordinary citizens may find it difficult to get a platform to be heard for example at the IEO, or ILO thereby limiting participation and inclusion.

Ngcimezele Mbano-Mweso, Dullah Omar Institute questions whether corporations are involved in human rights beyond ticking check-boxes such as belonging to the IOE, or if it is merely window-dressing.  She advocated for naming and shaming of corporations violating human rights and questioned the existing economic order ‘capitalism’.

In conclusion, the roundtable discussion ended with highlights on the role of citizens, civil society, corporations and government to engage and implement human rights accountability regulations inorder foster democratic enforcement of socioeconomic rights.

The Roundtable discussion was funded by FORD Foundation and Konrad-Adenauer-Stiftung Foundation.