Should the private sector help finance legal empowerment?

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environment
justiceforall

(Bisimwa Kajangu) #24

Nous sommes bien ravis des réactions de tout le monde sur l’option de prendre des financement de la part du secteur privé pour l’autonomisation juridique, l’option est très capitale et je la soutient mais dans l’optique basé sur le principe que ces sociétés sont redevable envers le peuple riverain ou environnants victimes des effets nocifs ou des conséquences dus aux activités qu’elle effectue. c’est ‘‘le principe pollueur payeur’’, qui a été adopté par l’OCDE en 1972, comme un principe économique visant à charger les sociétés pollueuses de des coûts pour la lutte contre des effets des pollutions causées par leur activités ou à les prévenir. donc nous pouvons recevoir leurs financements pour soutenir nos organisations à fonctionner sans perdre notre indépendance vis à vis des ces parteneurs privés ou étatiques. Les gouvernements et les Sociétés privées, sont des éléments incontournables, car lorsqu’ils sont auteurs des abus, ils nécessitent aussi une sensibilisation et/ou des renforcements des capacités sur la législation internationale en la matière, pour leur permettre de connaitre la conséquence de ces abus dans l’avenir des populations victimes. Merci Salut tous


(Paul Thomas) #25

If the person whose in charge is not solving the problem is because they are the problem people need to be contended with what they have and do their work themselves there are those who rob and kill for money then use that same money to finance projects then order for what they want which is not what others want start from scratch build your own home and protect it from intruders and you’ll be the private or public sector


(Sarah Oketayot) #26

It is very complex and we should be cautious. Some well-meaning people will advise them against raising fund for legal empowerment at their expense. A good dialogue can work as well because legal empowerment organs can provide services to private sectors by providing awareness of these capital crimes and how to avoid them. A memorandum of understanding is of paramount importance in this process with clauses clearly stating that such contributions do dot exempt anyone from legal prosecution.


(Mwikamba Mwambi) #27

This is very interesting indeed, a number of people have clearly articulated the fact that indeed the private sector has the responsibility to fund legal empowerment. I also support the need to put safety nets/ safeguards to ensure the independence of the legal empowerment process to ensure that it does not end up being a form of Corporate Capture. In essence if not well thought, the process might end up being controlled by the private sector. However lets ask ourselves the fundamental question of really where CSOs get their money from. Most of them receives grants from Governments and donations from individuals. Starting with donations from individuals, where do they make their money from if not from private investments. Secondly, the governments also derives their revenue from private sector. So what would have changed if a CSO would take directly or knowingly funds from private sector. The only difference is the fact that the flow of the money from the private sector to the legal empowerment program, in this case has an intermediary that somehow insulates the private sector from dictating/ controlling the CSOs (which is very debatable). So yes, private sector has indeed been funding the CSOs however if it is to be directly, then measures and safeguards need to be thought through and agreed upfront.


(Nicodemus Soko Axwessoo Siayi) #29

NO-With me I do not believe if it would be possible for the private sector to help finance legal empowerment.The Private sectiotr do not believe on a Free will ofthe Charity and Rights orented as they differ in characters-Charity is always for the leftovers not for profit oriented.


(Wanani Mwita) #30

My though here is Yes, because we need them in our program, but the principle of accountability of these private sector should remain constant.


(Stella Obita) #31

Yes ; I believe the private sector can be allies for good cause. Legal empowerment is a tool that can efficiently be used to promote , and defend human rights; however, most traditional donors are reluctant to support it, unlesss it is integrated in one of its thematic areas of interests.

Therefore, there is need to diversify, sources of funding. Corporate actors are moving towards embracing human rights as part of their corporate governance structure; and thus may be open to supporting legal empowerment.

It would depend most definitely on the strategy we can employ to sell legal empowerment to the private sector; If we can target their corporate citizenship activities and budget; then it will be possible to get funding from them.

However, there is need for exercising good judgment and discretion when approaching the private sector for funding. An organization may have a conflict of interest, when it seeks funds from a corporation, whose activities result in human rights violations , that happens to be the organization`s focus at the time.

However, there are some corporations willing to work with civil society organizations to improve their human rights compliance mechanisms and to promote human rights in their areas of operations.These should be the ones, who ought to be approached for financial support and a request for partnership.

So , yes , with the right strategy in place, it is possible to seek financial support from the private sector, without compromising the organization`s independence.


(Andrew Ochola) #32

Corporations, state-owned or private, exist to solve certain problems. Unfortunately, often in so doing, whether by design or default, create other problems or even worsen the existing situation. Despite the fact that some of these injustices are serious and pronounced- directly affecting people’s health and livelihoods, corporate conscientiousness is often too low that they seem not to notice. Some even deny their existence- much the same way some major emitters of carbon, especially fossil fuel companies, disapprove climate change science- perhaps because acknowledging that global warming is a reality and that they are contributing to it, may have a significant impact on their image and bottom lines.

As you have indicated in your Washington Post article, companies often have very nice guiding principles or core values- “conflict sensitive approaches”, “do no harm”, “sustainable development” etc. but these have largely become catchphrases that often fail to yield any meaningful impact- especially when profit maximization takes center-stage. However, there are a few companies that uphold these standards. One such corporation in Kenya is Bamburi Cement, a building materials company and a subsidiary of LafargeHolcim. The company acknowledges that its activities contribute significantly to environmental degradation and thus employs substantial resources in mitigating such effects and creating community awareness -through Lafarge Ecosystems, another subsidiary of LafargeHolcim.

Many private companies in Kenya like Tullow oil in Turkana County, and the Kwale based Base Titanium and Kwale International Sugar Company (KISCOL), have in the past been involved in frequent conflicts and protracted court battles with affected communities- and the gap is evident! While these multinational companies have the financial muscle to litigate, ordinary Kenyans have to rely on pro-bono lawyers and Paralegals. In 2016, Kenya passed the Legal aid Act, 2016, heralding a new chapter in the quest for access to justice. Among other things, the Act has created a Legal Aid service charged with the administration of legal aid scheme and accreditation of legal aid providers. However, the scheme is not yet fully operational and for it to be up and running, it will require a lot of goodwill from government- to put in place effective structures and to allocate sufficient funds to it.

But concerns are already being raised on the scheme’s dependence on government considering that sometimes the government can also be a perpetrator or an interested party in a case. Additionally, not everyone will be eligible for legal aid (which is obviously not a problem) but there appear to be gaps in the methodology to be used to determine who qualifies or not.

I support the thinking that where a company’s activities are likely to cause harm to the community or lead to injustices, (or is doing that already), there must be a way of holding it to account and one way of doing that is to compel the company to support activities aimed at creating community awareness around the issues, and more importantly pay for independent legal support for the people who are likely to be affected/who have been affected by the development. My take is that 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.

In other parts of the world, it could be part of a company’s Social Corporate Responsibility (SCR); but one that is well defined and protected in law, not just a buzzword for public relations. Luckily, a number of jurisdictions including India and Indonesia are already taking legislative measures to make SCR mandatory, a move that will significantly increase corporate consciousness and accountability. We need to advocate more for the inclusion of legal aid as an integral part of CSR in such jurisdictions but also promote the enactment of policies that seek to ensure legal support for individuals/communities that are likely to be affected by private investments, like the new land policy in Sierra Leone.

Such a move may face resistance from corporate bodies which may view it as another form of taxation, considering that in some countries, companies are already overtaxed. In Kenya, for instance, it is likely to be viewed as a disincentive for investment, and many will point out bodies like the National Environmental Management Authority (NEMA), National Lands Commission and the National Legal Aid scheme (as presently provided in the Act) etc. as having sufficient jurisdiction over such matters.

Assuming that the idea is received positively, the fund may be subject to administrative bottlenecks and may sometimes not reach the foot soldiers on the ground- the people who do the real work. Again, companies may become big-headed and complacent, cognizant of the fact that they are providing legal empowerment support to the community and thus affected communities should be able to handle their injustices. Again, holding to account a hand that feeds you has always been a tricky a fair for many people/organizations, but this concern can be addressed by coming up with a mechanism that prevents conflict of interest.

All in all, this is a brilliant idea that is already pushing the boundaries of current thinking. It will require a lot of lobbying and advocacy and may face a number of challenges on the way, but is well worth the effort.


(Tapan Kanti Dey) #33

It will be highly appreciated that private sector come together for financing legal empowerment. But need to change the private sector policies like need to establish "Business and Human Rights, Ecological Rights etc. Otherwise it is require to People Centered Governance. Global trend is " Politics /state control by the " group of capitalist’. This is global contextual reality. Laws are need to built from bottom up and based on the Peoples Centered Exercise or experiment. It may be better, National Laws and important Law related issues introduced in secondary and intermediate level curriculum. Just not only parliamentarian and lawyers works.


(Mary Oyier) #34

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


(Vivek Trivedi) #35

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?


(William Ellis) #36

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.


(William Ellis) #37

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


(Sam Szoke-Burke) #38

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!


(Vivek Maru) #40

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.


(Paul Thomas) #41

Only if they are apart of it they could be private


(Tobias Eigen) #42

(Sonkita Conteh) #43

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!


(Abdulrasaq Kareem) #44

yes, this will improve the efficiency of the sector


(Nicodemus Soko Axwessoo Siayi) #45

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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