The State of Corporate Accountability in Uganda a Baseline Study Report for the Uganda Consortium on Corporate Accountability
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The State of Corporate Accountability in Uganda A Baseline Study Report for the Uganda Consortium on Corporate Accountability September 2016 i The State of Corporate Accountability in Uganda ii The State of Corporate Accountability in Uganda A Baseline Study Report for the Uganda Consortium on Corporate Accountability September 2016 Cover photo: Community members working at the Tororo Cement mining site in Moroto district iii The State of Corporate Accountability in Uganda LIST OF ACRONYMS ACODE Advocates Coalition for Development and Environment CBO Community Based Organizations. CCCC China Communication Construction Company. CEHURD Centre for Health Human Rights and Development CISCO Civil Society Coalition on Oil CNOOC China National Offshore Oil Corporation ECO Ecological Christian Organization EIA Environmental Impact Assessments EITI Extractive Industries Transparency Initiative EOC Equal Opportunities Commission ERA Electricity Regulatory Authority ETO Extra-Territorial Obligations ILO International Labour Organization IRC Industrial Relations Court ISER Initiative for Social and Economic Rights IUCN International Union for Conservation of Nature LBT Legal Brains Trust MNC Multinational Corporations NEMA National Environment Management Authority NFA National Forestry Authority NGO Non-Government Organization NODPSP National Objectives and Directive Principles of State Policy NSSF National Social Security Fund OECD Organization for the Economic Co-operation and Development PILAC Public Interest Law Clinic, School of Law, Makerere University RDC Resident District Commissioner SERAC Social and Economic Rights Action Centre TNC Transnational Corporation UCCA Uganda Consortium on Corporate Accountability UHRC Uganda Human Rights Commission UIA Uganda Investment Authority UNGPs United Nations Guiding Principles on Business and Human Rights UWA Uganda Wildlife Authority VPSHR Voluntary Principles on Security and Human Rights iv TABLE OF CONTENTS ACKNOWLEDGEMENTS VIII PREFACE IX EXECUTIVE SUMMARY X CHAPTER ONE: INTRODUCTION 1 1.1 Introduction 2 1.2 Aims of this Study 2 1.3 Methodology 3 1.4 Conclusion and Outline 6 1.4.1 Structure of the Report 6 CHAPTER TWO: CORPORATE ACCOUNTABILITY IN INTERNATIONAL HUMAN RIGHTS LAW 9 2.1 Introduction 10 2.2 Non-State Actors and Human Rights: Theoretical Debate 10 2.3 Corporations in International Law 12 2.3.1 Self-Regulation 12 2.3.2 State Responsibility 12 2.3.3 Principles on Extra-Territorial Obligations of States 15 2.3.4 Direct Responsibility of Non-State Actors 16 2.3.4.1 Soft-Law Norms and Mechanisms 16 2.3.4.2 Towards Binding Norms 17 2.3.4.2.1 The UN Norms 17 2.3.4.2.2 Ruggie’s Protect Framework and Principles 18 2.3.4.3 The Possibility of a Treaty for Business Enterprises 19 2.4 Conclusion 19 CHAPTER THREE: CORPORATIONS ACCOUNTABILITY FOR HUMAN RIGHTS UNDER UGANDAN CONSTITUTIONAL LAW 23 3.1 Introduction 24 3.2 Which Rights are Corporations Bound by? 24 TABLE I: SUMMARY OF RIGHTS APPLICABLE TO CORPORATIONS 26 3.3 Which Human Rights Obligations Bind Corporations? 27 3.4 MECHANISMS OF ENFORCING THE BILL OF RIGHTS AGAINST CORPORATIONS 28 3.4.1 Direct Constitutional Actions 28 3.4.1.1 What the Ugandan Constitution says 28 3.4.1.2 The Principle of Subsidiarity in Comparative Perspective 29 3.4.1.3 The Legal Practice in Uganda 31 3.4.2 Common Law Actions against Corporations 33 3.4.3 State Action and State Responsibility 35 3.5 Conclusion 37 CHAPTER FOUR: STATUTORY NORMS AND MECHANISMS 39 4.1 INTRODUCTION 40 4.2 HEALTH 40 v The State of Corporate Accountability in Uganda 4.2.1 Public Health 40 4.2.2 Tobacco Control 41 4.3 ENVIRONMENT AND WILDLIFE 41 4.3.1 Environment 42 4.3.2 Forestry 43 4.3.3 Wildlife 43 4.4 LAND AND SETLEMENT 44 4.5 LABOUR 46 4.5.1 Employment 47 4.5.2 Occupation Safety and Health 48 4.5.3 Workers’ Compensation 48 4.5.4 Social Security 49 4.5.5 Trade Union Rights 49 4.5.6 Dispute Resolution 50 4.6 FOOD 51 4.7 EDUCATION 51 4.7.1 Pre-primary, Primary and Post-Primary Education 51 4.7.2 Tertiary Education 52 4.8 EXTRACTIVE INDUSTRY 52 4.8.1 Mining 52 4.8.2 Petroleum 54 4.9 WATER 56 4.10 ENERGY 58 4.11 INVESTMENT AND BUSINESS 59 4.12 CROSS-CUTTING AUTHORITIES 60 4.12.1 The Uganda National Bureau of Standards 61 4.12.2 The Uganda Human Rights Commission 61 4.12.3 The Equal Opportunities Commission 62 4.13 CONCLUSION 62 CHAPTER FIVE: THE IMPACT OF CORPORATIONS ON COMMUNITIES IN UGANDA 67 5.1 Introduction 68 5.2 Quarry Mining in Nakisunga, Mukono 68 5.2.1 Introduction 68 5.2.2 Impact of Quarry Activities 69 5.3 Gold, Marble and Limestone Mining in Karamoja 70 5.3.1 Introduction 70 5.3.2 Impact 70 5.3.2.1 Marble and Limestone Mining: DAO Africa Ltd 70 5.3.2.2 Limestone Mining: Mechanised Agro Ltd 72 5.3.2.3 Limestone Mining: Tororo Cement Ltd 72 5.3.2.4 Gold Mining: Jan Mangal Ltd 74 5.4 OIL AND GAS IN THE LAKE ALBERT REGION 75 5.4.1 Introduction 75 5.4.2 Impact 76 5.5 ANALYSIS AND REFLECTIONS 77 vi 5.5.1 Corporations and Economic Benefits 77 5.5.2 Nature of the Human Rights Violations 78 5.5.3 The Development Challenge and State Complicity 79 5.5.4 Corporate Accountability and Social Responsibility 81 5.5.5 Community Responses and Access to Remedies 84 5.6 Conclusion 86 CHAPTER SIX: CIVIL SOCIETY 88 6.1 Introduction 90 6.2 Civil Society in the Field 90 6.2.1 The Lake Albert Region 90 6.2.2 Moroto 91 6.2.3 Kampala 92 6.2.4 International Organisations 93 6.3 General Challenges Faced by Civil Society 94 6.4 Conclusion 94 CHAPTER SEVEN: CONCLUSIONS AND RECOMMENDATIONS 97 7.1 Introduction 98 7.2 SUMMARY OF CONCLUSIONS 98 7.2.1 Positive Impact of Corporations 98 7.2.2 Negative Impact of Corporations 98 7.2.3 Corporations and Corporate Accountability 99 7.2.4 Community Responses 100 7.2.5 Civil Society Responses 100 7.2.6 Constitutional Recognition of Corporate Accountability and Procedures 100 7.2.7 Statutory Norms and Mechanisms 101 7.3 RECOMMENDATIONS 102 7.3.1 The State 103 7.3.2 Corporations 104 7.3.3 Uganda Consortium on Corporate Accountability 104 7.3.3.1 Litigation 104 7.3.3.2 Advocacy and Monitoring 105 7.3.3.3 Research 105 ANNEX 1 109 BUSINESS AND HUMAN RIGHTS TOOLKIT: AN AUDIT OF UGANDA’s PERFORMANCE 110 A LEGAL FRAMEWORK AUDIT OF UGANDA’S PERFORMANCE IN THE FIELD OF BUSINESS AND HUMAN RIGHTS 111 vii The State of Corporate Accountability in Uganda ACKNOWLEDGEMENTS This report was prepared under the auspices of the Uganda Consortium on Corporate Accountability (UCCA), consisting of the Centre for Health, Human Rights and Development (CEHURD), the Initiative for Social and Economic Rights (ISER), Legal Brains Trust (LBT), and the Public Interest Law Clinic of the School of Law, Makerere University (PILAC). The consortium is hosted by ISER and coordinated by Mr. Arnold Kwesiga. The UCCA would like to express its gratitude to all those who participated in, and worked tirelessly on, this project from its inception and field work to the completion of this baseline report. This report could not have been completed without the support of other groups and individuals, too numerous to be named individually but whose support we value immensely. Our funders deserve special acknowledgment for their generous financial support. The whole research team comprised Prof. Danwood Chirwa, Dr. Christopher Mbazira, Mr. Arnold Kwesiga, Ms. Salima Namusobya, Ms. Dianah Ahumuza, Mr. James Zeere, Ms. Fiona Orikiriza, Ms. Allana Kembabazi, Mr. Joshua Kisawuzi, Ms. Dora Kukunda, Ms. Miriam Atim, Mr. Eriya Nawenuwe, Mr. Joseph Byomuhangi and Mr. Simon Ssenyonga. We thank the research team for undertaking the field research and collecting data for this report. Special thanks go to Prof. Chirwa for leading the research, including developing the research tools and authoring this report, and Mr. Arnold Kwesiga for managing and coordinating this project. Mr. Steven Jjuko, Ms. Mariam Nakiganda and Ms. Jacque Nakiyingi were responsible for all the logistical support to the project, for which the UCCA is thankful. A wide range of state institutions, corporations and civil society organisations were interviewed for this report. The UCCA deeply appreciates their openness, kindness and trust to interact with the field researchers and willingness to share their experiences around matters of corporate accountability. This report would not have been completed without their input. Lastly and more importantly, we would like to acknowledge the hospitality and enthusiasm displayed by the three communities of Moroto, Lake Albert region and Mukono interviewed for this study. Agreeing to participate in focus groups and interview sessions was demanding of their time. We do not take their generosity for granted. It is our hope that the issues canvassed in this report will assist the different sectors in coming up with mechanisms that better protect, respect and fulfil the rights of these and similarly affected communities. Due diligence was exercised in presenting and interpreting the information obtained for this research accurately. Any errors and omissions in this report should not be attributed to any of the interviewees, but to the UCCA alone. Uganda Consortium on Corporate Accountability September 2016 viii PREFACE ‘Corporate social responsibility’ as a phrase has come to be synonymous with corporations engaging with the communities in which they operate, usually connoting charitable acts. It is a mechanism—albeit largely voluntary, that gives back to the community through addressing key community needs in health, education or infrastructural challenges.