Solomon Dersso (PhD), chairperson of the African Commission on Human & Peoples’ Rights

Companies, in manufacturing as well as the extractive industries, are no strangers to allegations of human, economic and environmental rights abuses. Weak regulatory capacity and economic and political policies designed to accommodate Ethiopia's developmental ambitions has left gaps that exposed employees to abuse. Christian Tesfaye, Fortune's Op-Ed Editor, sits down with Solomon Dersso (PhD), chairperson of the African Commission on Human & Peoples’ Rights, to opine on current human rights conditions in the economic sphere and the way forward. Solomon is former head of the Peace & Security Council Report at the Institute for Security Studies and non-faculty assistant professor of human rights at Addis Abeba University.

Fortune: The most famous example that is brought up in order to argue against wide-ranging, political and human rights is the success of China. China lifted 800 million people out of poverty, and they did it within just three decades. Does the argument that this is what matters at the end of the day hold water?

Solomon Dersso (PhD): This is a very long debate that has been ongoing here in Africa, [since] immediately after independence. The rise of China has brought back that debate again. In Asia, countries like Singapore, and its very famous leader Lee Kuan Yew, are associated with the idea that human rights are not good for economic growth. It is important to deconstruct this idea on the relationship between human rights and economic growth.

The China or Singapore example looks at the relationship between human rights and growth only from one perspective. One that says economic growth helps human rights, basically because with economic growth, millions of people will be lifted from poverty and therefore will be able to live a more dignified life. This is part of human rights.

Certainly, with economic growth, education will expand, and with the expansion of education and health, the living standard of people would also improve. And this is also good for human rights and indeed it forms part and parcel of human rights. This is one aspect, and a very important aspect at that.

But that is not the only correlation that economic growth and human rights have. The other one is: what is the impact of human rights on economic growth? Now China or Lee Kuan of Singapore made this argument that if you observe human rights, you wouldn’t be able to achieve economic growth.

Human rights affect economic actors in various ways. The first thing we need to say about human rights and economic growth is that human rights are good, normatively speaking, on their own. That’s what Amartya Sen, the famous Nobel Prize winner in economics, says. Human rights and freedoms are intrinsically good on their own, but he also shows that they are [an] instrumental value for economic growth as well.

There is no country in the world that respects freedom of expression that will also, for example, have at the same time, a famine. This is based on research that Amartya and people like him have undertaken. But freedom of expression and information are key for economic growth, because they fight asymmetry of information, imperfect information, and in the process, they promote competitiveness. With competitiveness, we know what kind of values come in the economic sphere of society.

But the other way of looking at this, studies conducted on this question show that it is possible to argue that human rights, for instance, relating to freedom of expression and association enables you and me to organise, pull our resources together and engage in economic activities that contribute to economic growth. The fundamental importance of rights like freedom of association is key. Beyond and above that, there are things like respecting property rights.

Now, if you violate human rights, what happens? What happens is, basically, with the violation of rights, unpredictability and uncertainty, emerge. With that unpredictability and uncertainty, long-term investment and a return on long-term investment would not be there.

In the economic sphere, rule of law and protection of property rights are a prerequisite for attracting foreign investment. When you do not have these, what happens? People will not come here.

Yet the other way of looking at this thing is that it is possible, as various research has shown, that human rights may not have any impact instrumentally speaking. Human rights are important intrinsically, in their own right, irrespective of their contribution to economic growth.

But human rights also do not have a significant negative impact if you do the analysis over a longer duration. Now, there could be tensions. And those tensions relate to this question. How fast can, for example, decision making be made? When you have the rule of law, when you have to respect due process of the law, where you have to respect the rights of others, what normally happens is, decision making would not be as quick, and that may slow down the speed with which you can implement, particularly if it is big development projects.

What do you think of India’s economic growth compared to China?

Q: Not comparable to China’s.

Not comparable to China, but they have achieved a significant amount of growth, right? You find India on the other side of the spectrum. It is the largest democracy in the world. So is it about whether you respect rights or not, or does it have to do with many other areas?

So, the single variable for the respect of human rights should not be considered as having a negative impact, a significant negative impact, on its own, on economic growth. There are many other variables in between. One of those variables would be the question of whether or not a particular government has the opportunity to stay in power for so long to be able to experiment and pursue a particular economic policy. That enables it to implement an economic policy over a long period of time without disruption.

Solomon Dersso (PhD), chairperson of the African Commission on Human & Peoples’ Rights.

That is what India’s example shows you. Congress Party was there for a significant number of years. That is the most important aspect of the variable, rather than just the fact that we have to respect human rights and therefore that would have a significant negative impact on growth. It is not that black and white.

Q: There have been cases in Ethiopia where licenses and concessions were suspended in some regions of the country. And this is in an environment where the institutions are not doing their homework or do not have the institutional capacity. The mix of weak institutions and having to apply those human rights laws is bound to have huge negative consequences when it comes to attracting investment. How is it possible to attract investments while at the same time dealing with human rights’ issues when we yet do not have the infrastructure to do it properly?

The extractive industries are one of the major areas of investment on the continent. It is a sector that mobilises a large amount of money. It is also a sector in which big, multinational companies are engaged in the extraction sector. The problem is that this sector by its history is associated with a number of negative issues, particularly in terms of whether or not the extracting industries have been engaging in an environment where they respected, for example, issues relating to tax responsibilities, fiscal responsibilities, which are key.

What are their bargaining powers compared to weak countries? These companies amass a huge amount of wealth, more than the GDPs of some of these countries. They have huge social influence and economic influence and are increasingly having political influence.

Of course, across the continent, the history of extracting industries is one of imposing that level of influence because they do not want to be regulated effectively. The result has been a human rights vacuum, basically as if human rights did not apply to them. The result has been extremely devastating.

Yes, there has been money that went into the coffers of government, but the money that they were able to take out of the continent is far higher and nowhere near the money that was left behind. Even that money that is left behind does not cover the cost that relates to externalities, such as the environment. In affecting the environment, it can affect water resources. It can affect land, and the impact would undermine the livelihoods of people living in that neighbourhood, in that territory. What happens is that people, instead of benefiting from the operations, they become worse off.

That is what we call the phenomenon of the resource curse. It is not just the economic power imbalance between the extractives and the countries that is the source of the problem. Most importantly, it is the fact that there is an extremely weak or poor regulatory regime and therefore institutions. These extractive industries are able, for example, to benefit from tax breaks, duty-free benefits and privileges. And on the tax that they pay, they still use trade misinvoicing and various other tax plots to evade their fiscal responsibilities.

That is why you have what we call illicit financial flows on the African continent to the tune of over 63 billion dollars. That is a huge amount of money that is going out of the continent. Ethiopia is one of the victims of that kind of illicit financial flows on the continent. And this is exactly the result of weak laws, weak institutions and lack of enforcement in those institutions. In our engagements, what we have done is ask what the problems are and where are the weaknesses?

The weaknesses relate to the laws themselves, because the laws have to regulate the entire cycle from the start of negotiation for granting licenses to the conclusion of operations. At different stages, there are different things that need to happen, so in the negotiation process you answer the question, why do you need to give tax brakes and duty-free exemptions?

If you allow these institutions to operate in a certain way, and it creates animosity between these operations and the people living in the area, it is a matter of time before the crisis hits. For the time being, these companies may be able to extract and make a profit, but it will catch up with them, because of the lack of good relationships between the community and the extractive industries.

This should have been done from the very beginning. You should not start to do it when the crisis starts, because there are international standards that enable you to enforce these standards from the very beginning. And to that end, you need to have, of course, effective institutions. These institutions include regulatory institutions, which make sure that these extractive companies observe, not only the terms of the license you agree with, on the basis of which they operate, but that they also comply with the laws of the country. And this would include the rights that are guaranteed in the Constitution and other international instruments by which Ethiopia is bound. The institution must be able to do that.

There has not been effective monitoring of those things, and capacity has been lacking in that respect. But this example has demonstrated that you actually suffer more by the time the crisis hits. If you do it from the very beginning, then you do not have to run into this trouble.

Q: Would it be more effective to fight for these human rights by lobbying not the government but instead consumers? There are instances in the US where companies have been punished after negative news coverage about them surfaced. Maybe now you have these human rights advocates and human rights organisations, instead of going to governments, approaching consumers of these products and saying, “Look, these companies are doing this and that, so you need to punish them, because they’re likely to hear you more, because they are going to feel it in their pockets than they are likely to listen to the government.”

That depends on whether or not the companies’ operations in those oppressive conditions get disclosed. Is it always the case that it gets disclosed? More importantly, you also often have them say, “Look it’s not me as the institution, it may be some contractor that has been assigned a certain task.” Deniability is another challenge that you basically face in this kind of environment.

You’re right in one sense. All kinds of strategies need to be in place. The strategies that come from the people who are affected, by organising themselves, by exercising their right to freedom of association and organising and campaigning for respect for their rights, by media houses shedding light on the kind of people that operate in these kinds of environments. That is also an important strategy.

While all of these things are well and good, human rights by their very nature, first and foremost, impose obligations on governments. That is in the nature of human rights. The responsibility of government is not one you can shift to anybody. That is very important. That does not mean that others would not have responsibility. For example, we also see another development that relates to what we call the self-regulation of companies themselves. Companies voluntarily assuming certain responsibilities. It comes in the form of, for example, corporate social responsibility. Observing a certain minimum standard in their operations; obviously, this depends on the extent to which the company is self-respecting and honest.

Voluntary commitment depends on your will and ability to live up to your commitment. It does not depend on external enforcement. So when there is no external involvement, as it often happens, particularly in an environment where there are no major society organisations … for instance, in Ethiopia, do you know any major society organisation that operates in extractive industries?

Q: No.

Exactly! All right. We have yet to create awareness among the said society organisations for them to increasingly engage in this area. For people operating in the flower industry, industrial parks or the extractive industries, we need to have increased engagement and involvement. It is in that kind of environment that even the companies themselves have the incentive to live up to their own commitment.

When that is lacking, the tendency is that, if you can get away with it, then why bother about even your own self-regulation. That is why, from time to time, even companies that made commitments internationally to self-regulate end up engaging in activities that are contrary to these voluntary guidelines.

You might have seen a report by CNNabout the extraction of a very strategic mineral for the modern electronics industry, where companies engaged in violations of human rights, using child labour for example in extraction. So, yes, we need to have all of these different strategies, but I think there’s nothing like having strong regulatory framework. There is nothing like having institutions that are capable and able to enforce these laws.

Q: The idea of human rights has become so broad and its components have become varied over the years. When you go to more democratically mature countries, for instance, the minimum wage is considered a human right. In less democratically developed countries, that is not something that the people would go to first when they think about human rights. Are we advocating for the kind of democratic rights that we expect from fully developed, democratically mature countries?

Respect for human rights does not depend on whether you are in a developed country or not. That is why we say, normatively speaking, you do not make a distinction on whether I respect your right, because you are a rich person, or I should ignore his right, because he is a poor person.

Empirically, the realisation of economic, social and cultural rights under the International Covenant on Economic, Social and Cultural Rights is said to be progressive. Progressive realisation means that it is over time and not something you do once, because it requires a lot of resources and capacity. There are those considerations, obviously, depending on your empirical situation. The kinds of margins of manoeuvre that you would have as a country would be different depending on where you are.

While the standard remains the same, the scope of policy options would vary, depending on your particular socioeconomic or political conditions. That one is generally accepted in the human rights framework. But that does not mean that the standard is different.

With respect to labour rights, particularly in terms of wages, no individual should be expected to operate or to use his or her labour for enabling a company to make a profit, while he or she does not even get the kind of money that enables him or her to have the bare minimum of existence. That one would be a very serious violation. That is what people get operating in a slavery kind of environment.

Our comparative advantage, often it is said, is our population, and therefore “cheap labour.” Even the language itself, cheap labour, has that tendency of removing the human. It does not sit well where I come from in terms of human rights language. Now, I do understand that.

But there are many kinds of costs for companies, and those costs are being pushed on human beings. This is the problem that I see. Why not create the conditions to lower the costs in those other areas? For example, companies complain that they have to bring a lot of raw materials from abroad. Why not create the conditions for companies to use local content? That the cost of bringing those inputs would be lower rather than that cost being pushed on human beings.

The wage issue is obviously related to economic development. But people should not be expected or allowed to operate or serve in slavery-like conditions. In this time and age, it does not matter that you are not a well-developed country. You may not be able to set a minimum wage across the entire economic sector, but this can be done for certain sectors.

Q: When it comes to these mining industries, we are as well presented with the land policies of Ethiopia. We have a lot of cases where conflicts have risen out of certain indigenous populations being moved, perhaps, maybe not even from a piece of land which they depended on to make a living, but which had a cultural significance to them. At the end of the day, would a large part of the controversy surrounding extractive industries be addressed with a different land policy?

It is important to understand one thing about land. Land does not just have an economic or monetary value only. The value of land is not and cannot be reduced to monetary and economic value. Land is basically associated with the wellbeing of human beings and the communities that live on that land. A source of livelihood, certainly, but also the land and the environment on that land shapes the attitude, perspectives and lives of individuals and communities that live on that land.

At times, part of the tension or conflict comes from the lack of regard to these extra monetary and extra financial values of land. That conflict can be addressed if we consider the value of land in its entirety. By having regard for what land means for the survival of a community, for the survival of individuals and their community. As a community, it can shape their religion; it can shape their language; it can shape how they interact with the environment.

Now, private, public property or community property, from a human rights perspective, it is difficult to say which is more important. What we say is that there is a need for certain minimum guarantees. It does not matter what the ownership framework is. Irrespective of what the ownership framework is, there are minimum guarantees that need to be observed. And these guarantees relate to, for example, that people should not just be dispossessed of their land for whatever public purpose it may be.

If they are going to be dispossessed of their land for public purposes - which is allowed in human rights law - then there are certain processes that need to be complied with. First people need to be consulted, seriously consulted. Not just to go and inform them that they have to pack and go tomorrow.

They have to be informed what the purpose of their displacement is. And, of course, they have to be paid effective, prompt, adequate compensation when they are ultimately displaced from their land. They have to also be provided with all the support that is required for enabling them to settle in whatever alternative place that they are provided and be able to carry on with their livelihood on that new alternative land. There should also be opportunities for them to benefit from these public interest investments or development projects.

All of these need to be taken into account. Based on the information we have received in the past, there was no consideration for these things. Whatever compensation that was given, it was very minimal and insignificant. There was very little by way of support. The result is basically resentment, disgruntlement, and people not being able to support themselves. People become poorer than they were before. That obviously leads to the kinds of crises that we have experienced. It is better and important, from an economic perspective, to comply with these standards.

Q: The African Commission on Human & Peoples’ Rights, which you are a chairperson of, at the end of the day, reports to the heads of state and governments that are member states of the African Union. And yet, the members of the African Union do not have a very good record of respecting human or political rights. So how does that contrast work?

The treaty established in the African Charter of Human Rights requires us to submit our activity report to the heads of state and government. Recently, I presented our report, as part of the summit of the African Union. The thing about it is that our report receives a lot of push back. It is actually one of the reports that often creates a lot of fireworks and indeed proves to be very controversial. States often do not want to be mentioned for violations of rights.

But the reason for our existence as the African Commission is to tell states when they violate human rights that they have violated human rights. That is the minimum of what we do and the minimum of what we should be able to do. That is why we exist. And indeed, member states have voluntarily consented and obliged themselves legally to be respectful of this work of the Commission.

This is not a political body. This is an expert body made up of human rights scholars, human rights practitioners and judges. And as such, its work may not sit well with politics but that is not for the commission to worry about. For the commission to worry about is to carry out its responsibility within the four corners and parameters of what the African charter says in terms of the respect for, protection, and fulfilment of human and people’s rights on the African continent.

It does not mean that we do not have problems. But it is extremely important to realise that the primary responsibility for protecting and respecting human rights lies with states. The African Commission steps in when states fail or are unable to do those things. Now, how much protection can one get from the African Commission for Human and People’s Rights?

I can mention an example. Dawda Jawara of the Gambia, when he was overthrown by a coup, one of the places he came to seeking protection was the African Commission of Human Rights. The same thing with Zambia’s Former President Kennneth Kaunda, [when his] citizenship right was challenged by a government that came after him. They brought his case to the African Commission of Human Rights.

What that does is not necessary, for example, if we say your right has been violated and ABCD needs to be done. It does not mean that the government would do the ABCD that we requested. That is not necessarily the kind of remedy that you may be able to get. What you will get is that your cause gets legitimised. When you say that your rights have been violated and, after investigation, we agree with you, that is your vindication. The government is wrong. It has violated your right, and you are entitled to a certain remedy.

That is the vindication that we get, and of course, legitimising your voice is an important instrument for campaigning and mobilisation for changing the law and improving human rights in your country.

Based on the standards that we develop, people are able to campaign for the improvement of their laws. For example, on the freedom of the press and access to information, a number of countries used the model that the African Commission developed in order to improve their legislation on freedom of media and access to information. Standards that we have developed helped citizens to campaign for changing various laws in their countries. And they have managed to achieve that successfully.

The standards that are set within the framework of the AU, if they have one value, it is about the normative protection that they provide. For instance, in Cote d’Ivoire in 2014, when the former president tried to violate the constitution and run for another term, citizens on the street used the African Charter on Election of Governments and Democracy to say “you are not allowed.” And they managed to unseat that president, who ran away in the end.

These are the kinds of things that you may, from the material, legalistic perspective, say that this is not really an effective system. But I think we have to put it in context, what it is capable of and what it is not capable of.

Q: The fact that you can say “they push back” says something for itself.

Absolutely. Basically, it is that legal protection that you get from it, enabling you to demand certain things

PUBLISHED ON Feb 08,2020 [ VOL 20 , NO 1032]

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