By Dorcas Basimanyane and Lassané Ouedraogo

Fifteen years ago this year, the United Nations Human Rights Council endorsed the Guiding Principles on Business and Human Rights, built on three ideas simple enough to fit on a napkin: states must protect human rights, businesses should respect them, and people harmed by corporate conduct must have somewhere to turn for a remedy. It was, at the level of language, a breakthrough. Before the UNGPs, “corporate responsibility” was merely a slogan; after them, it had a grammar. But read those three pillars again and notice the verb that governs business: should. Not must. The entire framework rests on a request, and a request is exactly what a mining company is free to decline.

This is not an accident or a drafting mistake. It is how the UNGPs were designed. Companies are expected to follow them voluntarily, and states are free to decide whether to make them legally binding. Where states adopt laws based on the UNGPs, they can make a real difference. Where they do not, the principles remain recommendations. For much of Africa over the past fifteen years, this has been the reality.

Consider what that means in practice. An anniversary is also an audit, and the honest answer to “has it worked?” depends entirely on where you stand. For instance, if you ask a compliance officer in London, you are most likely to hear about progress, but ask a family in Kabwe, Zambia, and you will hear something else. The gap between those two answers is not incidental; it is where architecture’s own design shows through. The Guiding Principles do reach Africa, but rarely through Africa’s own institutions. Their weight arrives from outside, through home-state due diligence laws written in Europe and through courtrooms abroad that occasionally judge what a company did on another continent. Where the framework touches African communities at all, it does so as law written elsewhere, enforced elsewhere, on behalf of claimants who must leave home to be heard. That is not protection. That is dependency.

Kabwe is the proof, though even here the facts are contested. The claimants say Anglo American’s South African arm controlled and ran Kabwe’s lead and zinc mine for close to fifty years, from 1925 until Zambia nationalised it in the early 1970s; the mine finally closed two decades later, in 1994. Anglo American disputes that, saying it held only a minority stake and provided technical advice, and that liability rests with the state company that ran the mine afterwards. However, what is not disputed is the harm. Kabwe is still one of the most contaminated towns in the world, its soil heavy with lead, and children born long after Anglo American departed continue to test positive for blood-lead levels that can impair their development for life. In October 2020, roughly 140,000 Zambian women and children filed a class action against the company in a Johannesburg court. Anglo American denies liability; five years on, the case is still fighting over whether it can proceed at all, let alone be decided on its merits. That is what happens when the only form of participation communities are ever offered arrives generations after the decisions were made, and only in the form of litigation.

This is not only a story about the past. It is happening again, faster, in the scramble for the minerals the world now calls “critical.” Zimbabwe has become one of the planet’s most important lithium sources almost overnight. Its hills are opened up by Chinese-financed mines, feeding the batteries in electric cars from Shanghai to Stuttgart. In Bikita, families settled since the land reform era now face eviction from farms leased to the mines, with no certainty of fair compensation, while residents nearby say they are left begging for boreholes because the water they have is no longer safe to drink. Human rights due diligence, fifteen years old this year, has not been shown to stop a single one of those evictions. The communities living on top of the ore are still, too often, told what has been decided rather than asked what should be.

Listening is not the same as sharing power

That distinction is the whole argument. For fifteen years, African communities have not lacked a voice. They have marched, litigated, testified before commissions, given interviews to journalists who then moved on to the next story. What they have lacked is a seat at the table while the decision is still being made before the concession is signed, before the pipeline route is fixed, before the environmental impact becomes irreversible. Consultation, as currently practised, too often means informing people of a decision already taken and calling it engagement. Communities do not need another workshop. They need to move from being consulted to becoming co-authors of the development taking place on their own land, and no voluntary framework will ever require a company to hand over that much.

Nevertheless, none of this makes Africa a passive recipient of rules written elsewhere. The opposite is closer to the truth. When the world debated, in 2014, whether corporate accountability should ever become more than voluntary, South Africa stood with Ecuador, Bolivia and Cuba to push the UN Human Rights Council toward negotiating a binding treaty on business and human rights — a resolution passed over the objections of the European Union and the United States, and still, twelve years on, unfinished.

Closer to home, the African Commission on Human and Peoples’ Rights has spent the past decade building its own architecture: guidelines on how states should report on extractive industries under the African Charter’s own resource and environmental provisions, and, in 2023, a resolution instructing its working groups to draft an African regional instrument a binding one, this time to regulate the conduct of transnational corporations on the continent. That instrument does not exist yet; it is a draft in progress, not a law in force. But the instinct behind it did not arrive from Geneva or Brussels. Adding to that is the African Continental Free Trade Area, which the Commission has now formally told to build its trade integration on a rights-respecting foundation rather than assume one, and a pattern comes into view: African institutions are not simply waiting to be handed a finished rulebook. They are trying to write one. Whether they succeed is a separate question, and it is still an open one.

Which brings us to the defenders, because no framework survives where the people who invoke it are killed for doing so.

Three decades ago, Nigeria hanged Ken Saro-Wiwa and eight other Ogoni men after a military tribunal the world condemned as a sham — punishment, in truth, for organising peacefully against Shell’s operations in the Niger Delta. Their deaths made Ogoniland a byword for what happens when oil wealth and human rights collide. They should also have made it a warning heeded. In October 2020, in Ophondweni, KwaZulu-Natal, gunmen shot Fikile Ntshangase in her home. She was deputy chair of a community organisation opposing the expansion of the Somkhele coal mine, and she had refused, days earlier, to sign a settlement the company offered her. “I cannot sell out my people,” she said. “And if need be, I will die for my people.” She did.

In March 2016, gunmen posing as police officers arrived at a home on South Africa’s Wild Coast and shot Sikhosiphi “Bazooka” Rhadebe dead. He chaired the Amadiba Crisis Committee, the community body that had spent years resisting a titanium mine planned for the dunes of Xolobeni without the consent of the people who would have to live beside it. Nobody has ever been convicted of his murder. The mine, for now, has not gone ahead. But the silence around his killing says something no policy document can: in too many parts of Africa, the price of asking to be consulted about your own land is still your life.

In Uganda and Tanzania today, with the East African Crude Oil Pipeline itself now more than four-fifths built, activists opposing it are still being arrested not shot, but silenced all the same. From assassination to detention, the method changes; the message to anyone thinking of speaking up does not.

Protecting human rights defenders is not a peripheral issue in business and human rights; it is the clearest available measure of whether any of this is actually working, and fifteen years on, it mostly is not. Two changes matter most. Governments have to treat civic space as something to protect rather than criminalise and build remedy mechanisms that do not take thirty years to reach a courtroom. The African Union, having already built continental architecture for trade, investment and industrialisation, should use that same machinery to entrench a business and human rights lens across it, making the protection of defenders a measure of a member state’s development credentials rather than an afterthought to them. Businesses and investors, for their part, need to stop mistaking a clean compliance checklist for legitimacy: a project communities regard as stolen from them rarely stays profitable for long, whatever the paperwork says, and showing up before a deal is signed costs far less than fighting a community after it is.

The first fifteen years of the Guiding Principles indeed gave the world a shared language for corporate responsibility. Whether the next fifteen give Africa more than language is not yet decided. It will depend on whether a drafted instrument becomes a real one, whether a single vote at the Human Rights Council becomes a habit rather than a stand taken once, and whether communities from Xolobeni to Kabwe to Bikita are still being asked to trust a process, or are finally handed a share in writing it.

Moving forward, development should not happen to communities. It should be shaped with them. Fifteen years ago, the world agreed that business should respect human rights. The work still owed is making sure Africa decides what that respect actually requires and for that, Africa must hold the pen.

Disclaimer: The opinions expressed in this article are solely those of the author and do not necessarily reflect the views of the University of Pretoria.