Should the private sector help finance legal empowerment?

Yes. Private sector must or have to contribute to the society as they draw too. It’s called unity towards survival and establishment @vivektrivedi

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This discussion has been enlightening - thank you for continuing to add to this important conversation.

Today, in BREAKING news, the U.S. Supreme Court announced it will hear a landmark lawsuit challenging the immunity of powerful institutions like the International Finance Corporation (IFC), the private lending arm of the World Bank Group. International organizations like the IFC have long claimed they are entitled to “absolute” immunity from suit – an immunity far greater than any person, government, or entity enjoys – no matter how illegal their actions are or how much harm they cause. More here:

https://earthrights.org/media/u-s-supreme-court-will-hear-landmark-case-challenging-world-bank-group-immunity/

As @vivekmaru noted in his op-ed in the Washington Post, “If a multilateral development bank wants to earn public trust in a country where it has funded projects, and wants to avoid litigating the problems of one land in the courts of another, it shouldn’t assert immunity as a legal strategy. It should make its investments more accountable to the people it was set up to help.” Read the piece here.

What are your reactions to today’s news?

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I agree there is scope for direct Private Sector funding, albeit highly qualified. A extremely comprehensive analysis of the relevant private actor’ s area of investment (including specific projects), institutional goals, and broader relationships would inform any decision to proceed with a funding relationship. Another critical aspect is continued monitoring of the relationship, ensuring that its integrity doesn’t become compromised over time.

That being said, I can envision only very few situations where it would be appropriate, and consideration of it should be approached with the utmost caution . Multi-national corporate structures are still bound by a fundamental blindness regarding the destruction of communities and the environment - there is always a quid pro quo lurking somewhere in the background, and it is premised on ensuring bottom lines and corporate bonuses.

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Also @vivekmaru if you could provide any information on the Sierra Leone trial of the contribution scheme, would be very interesting.

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Thanks to everyone for this fascinating discussion. In case useful, I am inserting an excerpt from a briefing note authored by the Columbia Center on Sustainable Investment (CCSI), the Danish Institute for Human Rights, and the Sciences Po Law School Clinic on potential funding options for a collaborative human rights impact assessment (HRIA). You will see that we thought long and hard about whether or not private sector funding would be feasible:

Ensuring sufficient funding for the assessment is critical. Equally important is ensuring that the source of funding does not adversely influence the process and outcomes, or affect the assessment’s credibility. Each funding source has its own advantages and drawbacks. Sourcing funding from the company, for example, may encourage company buy-in, and might also be the most scalable approach. However, company funding also carries the greatest risk of inadvertently influencing the assessment—or creating the perception of doing so. The host government, as the primary duty-bearer of human rights obligations, might be a logical funding source, but also presents challenges regarding actual or perceived influence. Neutral-party funding—from philanthropic organizations or foundations, bilateral donors, or other entities that are not direct stakeholders in a project—could help shield a collaborative HRIA from problematic influence and protect perceptions of the assessment’s legitimacy. Neutral party funding is, however, less replicable and scalable than relying on funding from an involved stakeholder.

Despite its drawbacks, funding from one or more neutral parties is the recommended option. Where this is not possible, the process could adopt a phased approach that combines neutral-party funding for the scoping phase (to determine issues such as which rights will be covered and what methodology will be used) with funding from the company for all additional phases of the collaborative HRIA. A third option would be to seek funding from multiple sources for all phases of the project, with the goal of diluting any single funder’s contribution and thus potential influence.

Briefing note: Briefing Note: A Collaborative Approach to Human Rights Impact Assessments - Columbia Center on Sustainable Investment

Longer discussion of funding starting at page 56: http://ccsi.columbia.edu/files/2014/05/A-Collaborative-Approach-to-HRIAs_Web.pdf

We at CCSI are also looking into the question of innovative financing solutions for legal support to communities, so watch this space!

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Wow! One of our dreams for the Global Legal Empowerment Network is genuine deliberation across our community.

That’s happening here.

Over 28 people have weighed in on this thread, from 14 different countries.

Big thanks to all of you for taking part.

In this post I will try to synthesize what we’re hearing and offer some concrete next steps.

A large majority—23 out of 28 participants—voiced support for asking the private sector to help finance legal empowerment. Two participants opposed the idea; the remaining three did not take a stance.

Private sector financing brings risks

Many of us emphasized the risks that would come with private sector funding. @MwikambaMwambi of Kenya mentioned the possibility of “corporate capture” of legal empowerment efforts; @williamellis of Cambodia and @nashmeister of Kenya warned that corporations might demand a “quid pro quo,” i.e. some concession in return for their contributions.

Institutional channels may be able to safeguard the independence of legal empowerment groups

Most of us agreed we’d need strong safeguards to protect the independence of our work. @marlonmanuel of the Philippines argued that “an institutional channel” can serve that purpose, by pooling funds and preventing contributors from influencing grant making.

@AndrewOchola from Kenya points to a specific institutional channel in his detailed post. He describes Kenya’s 2016 Legal Aid Act, which created a Legal Aid Service. He concludes,

“for countries like Kenya that already have a legal aid law, we should advocate for a regulation that requires private companies and investments whose activities are likely to harm neighboring communities to make mandatory contributions to the legal aid scheme.”

The legal aid scheme would then fund independent legal empowerment efforts to support people affected by industry.

Why would companies take part?

@marlonmanuel points out that institutional channels can either be compulsory—like the regulation that @AndrewOchola proposes in Kenya would be—or voluntary, in which good faith firms could choose to contribute.

@BernardKajangu from the Democratic Republic of Congo said corporate contributions to legal empowerment are justified by the principle of “polluter pays”—that companies should bear the cost of addressing the dangers they pose.

@stellaobita from Uganda observes that “there are some corporations willing…to improve their human rights compliance.”

Diversity of support is essential for resilience

Over-dependence on any one source—philanthropy, foreign aid, government, the private sector—leaves legal empowerment efforts vulnerable. “There is need to diversify sources of funding” says Stella. @Vbalson, also from Uganda, reflects on shifts in donor priorities and says “let us explore so many other options because we can’t raise resources the same way.” @peigen of Germany says diversity of support was crucial in protecting independence during his years running Transparency International.

Conclusions and Next Steps

  • Based on this discussion, we gather that there is substantial interest from across our community in exploring mechanisms for private sector financing. We would like to do so—in particular to explore solutions that could safeguard our independence—under the auspices of the network’s global campaign for financing and protection of legal empowerment .

  • We are working on a policy brief about financing and protection; we will include discussion of the role of the private sector, drawing on the comments here. We plan to launch the brief in September, which will be the 10th anniversary of the UN Commission on Legal Empowerment. Our message is: there is much, much more to be done. We hope the brief will be useful to network members advocating in their home countries and at regional and global levels.

  • @manjumenon of the Centre for Policy Research-Namati team in India sent two notes of caution. First, we should learn from existing attempts to collect resources from the private sector. For example, she notes that taxes levied on industry to fund environmental mitigation efforts have led to perverse incentives and implementation challenges in India. Second, she cautions against addressing this problem on an exclusively country-by-country basis. Many corporations are either multinational themselves or part of multinational supply chains. We should keep the global nature of industry in mind when considering potential solutions. These are important considerations. We will do further research on both these points and report back.

  • @williamellis from Cambodia asked for details about Sierra Leone. The provision in the land policy regarding a legal empowerment fund is very general (see section 6.4(a)(x) at this link). It has not yet been implemented. The Namati Sierra Leone team hopes to work with government and partners there to bring that provision to life. We will document our experience and share it here.

  • Similarly, if any of you are able to make progress on this front, please share your experiences with our community. @Vbalson, we’d love to hear how the new online payment system you’re testing in Uganda works out. And @AndrewOchola, we’d love to hear whether you make progress in advocating for new regulation in Kenya. Members can share here on the discussion platform or at the website dedicated to the global campaign.

None of us is in this alone. We are stronger when we work together.

With love and respect,

Vivek

cc: @namati_staff

I’d love to hear your thoughts, @sam_szoke_burke, @manyasi, @ArthurRWood, @gawayategulle, @job, @Okori, @MosesPhiri, @Chinga, @cocolammers, @BensonWesamba, @Pablo, @SarahOketayot, @SIAYI, @wanner, @tapan1970, @mariahoyier, and thank you for taking part in this beautiful exercise of sharing and deliberation.

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Only if they are apart of it they could be private

Thanks for summing up so clearly @vivekmaru. The thread of discussion here is fascinating. Given that billions are outside the protection of the law, diversification of funding is critical to reducing this deficit. Private sector must contribute its own share towards this end. In Sierra Leone, companies investing in natural resource exploitation (a hotbed for rights violations) enjoy huge tax waivers and exemptions for years (this practice is being currently reviewed). It would be unreasonable not to leverage a fraction of the resources they retain as a result, for legal empowerment work. The crux of the matter, as has been identified, is how to make the moving parts of diversified funding work. We won’t know until we try. And that is what we want to test in Sierra Leone. We will definitely share the result but if anyone gets there before we do, please holla!

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yes, this will improve the efficiency of the sector

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Thanks for coming again to this platform; Human Rights should not be an expectation; it should be must. Fighting corruption and promoting good governance and robust democratic participation for the needy and poor should take the first priority at the Legal and Human RIGHTS NETWORK -Global Legal Empowerment Network must take a keen kead to this exercise.

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There’s dire need to source funds from whichever sector I would fully support that . Be it private sector or government etc. However it shouldn’t have strings attached, if it’ll then our freedom and independence to execute our grassroot activities won’t be smooth comparing to, if it would’ve been from other sources otherwise.

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They should because they are still part of society

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Thanks V for this post.

You know financing is close to my heart. I agree with @MwikambaMwambi

We all get our funds from them already in one way or another. Though not directly. Some might argue that we get it through foundations but where did the money from the foundations originate from? But are all of them funding such initiatives? Are they doing enough compared to the harm they are doing? I know some might argue that not all of them are necessarily harming the environment. But on the other side they are ripping off either the poor or the environment itself without the communities benefiting.

For example we all love bottled water, leave alone what the plastic bottles do to the environment, have you ever though of how they are making millions from water that they obtain at very cheap rates from poor countries? Check this link where Nestle is sucking up water in communities at the end the areas becoming uninhabitable. The irony of buying your own water with the only addition being the branding. Should such corporations be forced by regulations to contribute to such funds? Or by the mere fact that every year in the name of CSR they go to an orphanage (children’s home) play with the kids and donate books or even pay their bills enough for the wealth they have sucked from such communities?

On the other hand, for those that are well known as the largest polluters especially the big petroleum corporations - is it ethical to take their money and do environmental conservation work? Isn’t that the same as cleaning up their messes? Or using their own funds to sue them in court? I remember having this discussion with one of their staff and I am yet to be convinced that it is ethical to receive such funds. Not unless it is before the corporation is set up and the damage is not yet done. But if the damage is already done then I believe we shall be the ones responsible of doing their dirty laundry. This reminds me of a campaign I read online about Pepsi promoting research about diabetes by donating 1 dollar for each 2 dollar giant pepsi cup you buy at a fast food joint. The link to the article criticising the campaign is here.

I hope we won’t be emulating the above campaign.

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The private sector should help because it is part of the community. Its effort puts on toes those in leadership and the general community on realizing the need of empowering the target group. We must join hands to make our effort fruitful.

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i am so with you on this one, yes private sector should Finance legal empowerment because they too cause lot of injustices in my Country and the government do nothing about that as well. Private companies will go in the rural area to open their companies and then they start to abuse those villagers all because they are paying taxes to government. Especially in Liberia, those different companies that come, they just explore those poor villagers and nothing comes out it.

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Yes… as I learn the legal empowerment is a poor area so I suggest that the private sector help bring out the legal section. It’s will not be comprising base on our negotiation .

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Above discussion offers great points to channel one’s thoughts on an important issue like this. Thank you to all for this. I am sharing my views below.

I think we are confusing accountability with responsibility here. Accountability is about ‘the consequence’. It is about making a particular someone pay for and/or correct the consequence of their actions. Responsibility is about checking a box, which many other are also checking. Responsibility could be shared, but accountability is not. If we get the corporates to contribute to a generic LE fund or fund an LE organisation, even through an “institutional channel”, it means the corporates are being responsible (not accountable). Being accountable is about taking localized, specific measures to correct a specific wrong. This is what the paralegals in most places are doing: they are bringing the matters to the state/judicial system and getting the state to deliver justice to them, many times the costs for these are borne by the company responsible.

We need to understand that corporates these days are putting all their energies into “looking good” than “being good”. By taking money from corporates we are helping them look good, more attractive to the investors, improving their public image, all this helps them garner more investments and cause more destruction. Yes, if we want to ‘be in business’ forever, this might be an option worth considering.

The corporates would any day like to put a plaster on a problem than having to make any fundamental changes to their operations. Also, when our paralegals and communities, push for systemic changes that draw from their experience of living the impacts and trying to resolve them, the provisions such as CSR act as barriers. Getting the state machinery to see beyond that veneer of ‘good corporates’ and acknowledge problems caused by them gets far more difficult. India’s Tata is a classic example of this.

It is a sad fact across countries that many of our funding sources, governments, foundations, individual donations are already making investments in projects of such corporates and that money eventually lands in our plates. So many of us have argued that eventually it is the corporate money that we get to do our work. But we are forgetting one fundamental difference here i.e. the mandates of these funding sources is different from the mandate of a corporate. They are not here to make money, in several countries the state is a welfare state, the government’s mandate it to ensure basic amenities and wellbeing of its citizens, foundations’ put out their mandate of aiding democracy, transparency, equality, etc. loud and clear. Individuals are only trying to make best use of their resources to better their lives and the lives of those they care for. So they can be reminded their mandates when they digress, we cannot do this with the corporates.

I agree with Marlon, that we need to build an external constituency that involves affected community. However, I feel it should be the state that creates space for this. Making corporates responsible for “public projects” absolves the state of its responsibility. This transfer of responsibility to deliver public goods and services such as legal aid from the state to corporates is problematic. It is an admission that the government has failed to do its job. Increasingly, the governments are getting unabashed about admitting their shortfalls. This is a sorry scenario. I very strongly feel that we should not contribute to the trend.

Please pardon the use of strong words at places. Sincere apologies if those hurt anyone. No such intentions there, those are only a result of my strong feelings on the topic.

Thanks,

Meenakshi

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Thanks for raising this topic @vivekmaru. Very, very enlightening views!