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.
