Somewhere in Africa, a multinational company is tick-boxing its way through a human rights checklist while a community loses its land anyway.
The company might have a policy. It might have commissioned an impact assessment. The project team probably held consultation meetings, recorded the minutes, and filed the documents. A sophisticated grievance mechanism sits on a project website, but a local villager doesn’t know it exists. On paper, the company has done everything the UN Guiding Principles on Business and Human Rights require. People still end up displaced. Livelihoods disappear, and a dispute that the company should have foreseen ends up in a courtroom or on a barricade years later.
This hypocrisy lies at the heart of the global responsible business industry. To date, investors speak fluently about “responsible business conduct”, and companies are producing ever-thicker human rights policies. Yet, communities across Africa’s mining belts, farmland, and forests keep paying for projects that were technically “diligenced.”
The bitter truth is clear: we have become experts at documenting risk to local communities, but remain toothless at protecting them from it.
Revisiting the UN Guiding Principles, we recall due diligence is meant to be an ongoing process of identifying, preventing and mitigating human rights impacts, and accounting for how a company addresses them. Yet in practice, where land and communities are concerned, it seems to be collapsing into something much smaller. Ordinarily, a meeting is held, a study is commissioned, a report is filed, a hotline is installed, completing the necessary paperwork. Yet, the harm continues.
As the European Union and other global lawmakers turn due diligence into explicit legal obligations, Africa cannot afford to keep hiding behind clauses and carefully worded frameworks. We already have laws we often say. So why are we still looking for the clause that tells us we can act? More importantly, why are we waiting for others to define what meaningful due diligence should look like when we have the power to shape those rules ourselves?
This is not simply about having rules on paper. It is about using our lawmaking space to define protections that speak to the realities of African communities and to give those protections a real force. If due diligence remain a shield for documenting risk and managing corporate liability, while communities continue to bear the cost, then we have missed its point entirely.
To fix this broken system we need to take stock of what we have been doing wrong.
- The time of Consultation matters
In most cases, by the time communities are “consulted,” the decisions that matter have already been made. Land has been allocated, licences issued, financing secured, sites selected, and contracts signed. True participation is replaced by an announcement dressed up as a conversation.
The South African landmark Xolobeni case shattered this practice. When a mining right was proposed over land held under South Africa’s Interim Protection of Informal Land Rights Act, the Umgungundlovu community did not ask for more thorough consultation. They asked whether the state or a corporation could unilaterally override their customary land rights without their explicit consent. In 2018, the Pretoria High Court ruled in their favour: holders of informal land rights are legally entitled to give or withhold their free, prior, and informed consent before their rights are disturbed. They cannot simply be informed after the fact.
This legal principle extends far beyond mining law. If due diligence begins only once the license, financing, and political commitment are locked in, it cannot prevent harm. It can only manage the community’s reaction. Therefore, to be effective, due diligence must be deployed at the earliest inception of project planning, when the project design can still be altered or abandoned.
- The Conflation of Consultation, Participation, and Consent
Another anomaly in the process is that consultation, participation, and consent are treated as interchangeable concepts. In reality, these are legally distinct doctrines with profound practical consequences. Consultation, as reflected for example in art 16 of the ILO Convention 169 and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), refers to a process in which affected communities are informed about projects and their views are sought, but ultimate decision-making power may remain with the state or company. Participation is a broader standard rooted in both African Charter rights and international human rights instruments, implying that people are not only heard but also have real and meaningful influence over decisions that affect their rights and interests. Free, prior, and informed consent (FPIC), recognised in instruments such as UNDRIP article 32 and affirmed by African jurisprudence like the Ogiek and Xolobeni cases, goes further: it requires that rights-holders must be given the opportunity to give or withhold their consent to a project before it begins, and that consent must be informed, free from coercion, and obtained prior to the finalisation of project plans. Briefly, consultation seeks opinions, participation involves joint decision-making, and consent grants or denies the legal authority to proceed. Therefore, a community meeting does not equal participation; a signature on the attendance register does not equal consent; and agreement from a handful of representatives does not represent a community's common will.
The African Court on Human and Peoples’ Rights clarified these distinctions in the landmark Ogiek case (African Commission on Human and Peoples' Rights v. Republic of Kenya). In 2017, the Court found that Kenya’s eviction of the Ogiek from their ancestral Mau Forest lands without their free, prior and informed consent violated seven separate provisions of the African Charter, including their rights to property and culture. The Court rejected the state defence of “we informed them” but rather focused on whether the Ogiek community, as rights-holders, had the right to say NO.
Any authentic African due diligence standard must at least be tested against this benchmark.
Furthermore, when corporations hollow out consultation processes, they also destroy institutional trust. A community that learns that a “consultation” was just a cosmetic exercise to legitimise a predetermined outcome has no incentive to engage in good faith in the future. Instead, it has every reason to escalate straight to protest or litigation. Current due diligence models rarely price in the cost of losing that trust, even though rebuilding it costs far more than earning it initially.
- The Property Bias- Title Deeds vs Customary Dependence
Most global due diligence still relies on only one question: who holds the legal title to the land? Within the African context, this focus can be narrow and fundamentally flawed. The question overlooks the populations most vulnerable to the project impact.
African Communities mostly hold land communally, managed under a customary tenure system. In other parts of the region, pastoralist communities sometimes graze the land seasonally without holding registrable title. Additionally, indigenous and local communities frequently maintain deep spiritual, ancestral, and cultural bonds to land that no formal registry can record. A due diligence process built strictly around formal ownership sees the state-sanctioned title-holder and misses everyone else. It ignores the forest-dependent family and the herder, and the community that views a hillside as an ancestral sanctuary rather than a financial asset.
This structural blindness determines who is counted, consulted, and compensated and who is left destitute. It is clear that this model cannot work for African peoples’. In Africa, land is more than a commodity. For many, it is who we are, where we belong, where our ancestors lived, where livelihoods are built and where communities find identity. Therefore, the right question cannot simply be who owns the land on paper, but dependence and land use questions such as; who belong to the land, who depends on it, who derives value from it, and whose rights and way of life will be disrupted when its ownership or use changes.
- 4. The Separation of Conservation and Human Rights
Environmental and human rights due diligence are too often run as separate exercises. Ecologists do a biodiversity assessment here, and hired consultants do a social impact assessment there. This disjointed approach wrongly assumes that a project’s effect on an ecosystem and its effect on the people who depend on it are different questions. But is this necessarily the case?
The Ogiek case dismantled this artificial separation. Kenya sought to justify decades of eviction from the Mau Forest under the banner of environmental conservation, claiming a public interest in protecting a critical water catchment area. In its 2017 judgment, the African Court rejected that justification outright, holding that the forest’s degradation could not be attributed to the Ogiek, and that environmental conservation objectives could not justify denying their land rights. Crucially, the evidence rather illustrated the opposite. Generations of Ogiek forest management, including controlled burning, selective harvesting and protecting water sources, had sustained the very ecosystem the state claimed to be saving.
This precedent should challenge the drafters of environmental regulations for Africa’s expanding green economy, carbon markets, and renewable energy transitions. An environmental mandate cannot license overriding community rights. Similarly, evicting the traditional custodians of an ecosystem is rarely an environmental victory. Frameworks that evaluate environmental and social impacts separately risk approving projects that ultimately fail on both.
- 5. The Report Is Not a Remedy
Reporting and assessing risks are essential business activities; a company cannot reduce or manage a risk if it does not know what that risk is. Public reporting also gives outside groups an opportunity to track and hold companies accountable for how they act. The problem is that when report drafting becomes the finish line rather than a minimum standard, the process becomes an end in itself. Too often, a consultant is hired, interviews people on-site, generates a lengthy compliance report, and then the project continues to operate without significant changes.
Then, often, nothing changes. This shows that an impact assessment is not a remedy, and identifying a risk is not the same as preventing it.
The human toll of this gap is visible in Mozambique’s Tete province. Large-scale coal mining concessions developed by multinational enterprises, including Vale and Rio Tinto, displaced over a thousand households between 2009 and 2013. Human Rights Watch documented the failures that followed: resettled agrarian families were allocated arid, non-arable, or already-occupied replacement land; promised agricultural irrigation schemes never materialised; water supplies remained highly unreliable; and institutional interaction between the state, corporations, and residents was structurally deficient. The channels through which community members submitted resettlement complaints did not provide a means to have those complaints addressed through remedial action. Although the project conducted comprehensive risk assessments, affected residents were denied access to the results, the project managers' commitments, and/or a way to hold them accountable. The risks to food security, clean water, and local livelihoods were entirely foreseeable and, in many instances, explicitly foreseen. What was missing was not data, but an enforceable institutional mechanism that forced that data to alter corporate behaviour.
An effective due diligence process will go beyond simply identifying risks. An effective due diligence process should clearly demonstrate how the company has altered its operations following the identification of a particular risk; assess whether the changes made by the company have reduced or eliminated the identified risk; and establish clear mechanisms for enforcement if the changes implemented by the company do not reduce or eliminate the identified risk. If no such mechanisms are in place, then due diligence is nothing more than documentation of human suffering.
- 6. Recognition is Not Realisation
The ultimate test of any human rights framework is whether an individual whose rights have been violated can readily access an effective remedy. The true metric of success is not whether a corporation can develop a human rights policy, but how long it takes to repair a violation.
The protracted legacy of the Ogiek case illustrates this gap between legal recognition and actual realisation. After its landmark merits judgment in 2017, the African Court issued its reparations judgment in 2022, ordering the Kenyan state to pay monetary compensation, restore ancestral lands, establish a community development fund, and guarantee ongoing consultation on future developments on Ogiek territory. However, in December 2025, the African Court issued a non-compliance finding, ruling that the state had failed to implement any meaningful component of either judgment: no compensation had been disbursed, no customary lands had been formally demarcated, and the community fund had not been established. Thus, nearly a decade after the initial judicial declaration of a human rights violation, an effective remedy remains unrealised. This institutional failure emerged only because an independent regional court had the public mandate to review state compliance years after the initial ruling.
Most corporate grievance mechanisms lack independent and transparent public oversight. When a right to a remedy is only a formality, it is neither effective nor practical. Similarly, when a remedy for an injury does not become available for ten years following the injury, it is too late to reverse the structural destruction of the injured community. Corporate grievance mechanisms designed simply to collect complaints, not resolve them, do not provide remedies to injured parties. Instead, these mechanisms serve as tools to manage local communities' anger while they wait to see whether their demands for accountability will ever be addressed. Remedies should be built into the due diligence process from the outset. They should not be created as a last resort once the injury has already caused irreparable damage and the legal proceedings have already commenced.
The Road Ahead- Five Shifts for Effective African Due Diligence
As mandatory human rights and environmental due diligence laws expand globally, Africa should not sit on the sidelines. The region still needs its own sector specific, responsive, adaptive and binding standards that reflect the actual experiences of the African peoples' relationships to communal land.
Five structural shifts are essential to achieve accountability:
- Prioritise Rights-Holders over Stakeholders-Corporations must distinguish between generic stakeholders and specific rights-holders. A company consults a stakeholder; it must bow to the legally protected interests of a rights-holder. Identify these rights before finalising any development decisions, and ensure they encompass all individuals with customary, seasonal, or unregistered tenure.
- Enforce Rigorous, Process-Driven FPIC- Corporations must obtain meaningful consent where international and domestic law demands it. "Prior" means obtaining consent long before project designs are locked in, and capitalisation occurs. "Free" demands the absolute absence of corporate coercion or state administrative pressure. Crucially, consent must be treated as a continuous, revocable process rather than a single signature collected to satisfy a compliance audit.
- Institutionalise Continuous Community Participation-Industrial projects frequently span several decades across feasibility, construction, operational, and decommissioning phases. A community that consented to an initial project design may find itself living next to a radically altered enterprise ten years later. Communities require permanent institutional structures to raise new concerns as projects evolve; static engagement windows that expire at the launch phase are structurally deficient.
- Ex-Ante Remedial Architecture- Remedial frameworks ought to be designed before harm occurs, rather than after a formal complaint is filed. This requires defining ex ante the exact nature of compensation, land restitution, or livelihood restoration if corporate mitigations fail. It requires building independent, structurally empowered grievance mechanisms that can alter project operations. Finally, all compliance data must be published in local languages and accessible formats to facilitate independent third-party monitoring.
- Distributive Justice and Benefit Sharing- Beyond assessing who is at risk, due diligence must ask who benefits from the resource extraction. Local communities cannot be expected to absorb the externalised socio-environmental costs of a project such as degraded agricultural land, village displacement, or river pollution while the economic returns flow to foreign shareholders and external state treasury.
This is not to say that I oppose all forms of industrial development; rather, I believe that the success or failure of an industrial development project relies upon whether the affected community is able to receive an adequate, structurally sound, and economically viable portion of the project's financial gain beginning at the time the project first becomes operational.
In conclusion, the next generation of African due diligence regulations must assess more than the corporations’ ability to produce documentation that complies with relevant laws. Legislators and courts must clearly distinguish between mere "paperwork" or "checklist" compliance and true accountability. Due diligence must be an incentive to change corporate behavior; it must actively prevent harm to human people or the environment, and provide effective remedies. Otherwise, as long as due diligence remains a checklist, local communities will continue to pay the ultimate price.
