[co-author: Hon. Medard Lubega Ssegono MP - Ugandan Shadow Justice Minister]

In Uganda, the business community, government and civil society groups are coming together to strengthen the protection of human rights.  On Friday 18 August, we had the privilege of addressing a group of Ugandan business leaders on how to put into practice the corporate responsibility to respect human rights.

The Kampala based event was hosted by the UN Global Compact Local Network, Federation of Ugandan Employers and Human Rights Network-Uganda.  It brought together senior representatives of indigenous businesses such as Centenary Bank and ALAM Group and the Ugandan subsidiaries of multi-national enterprises including G4S, Pepsi and Total together with representatives of governments, bilateral aid agencies, the UN OHCHR and other civil society organisations.

We started with a recap on the corporate responsibility to respect human rights and the ways in which businesses can be held accountable for adverse human rights impacts, in Uganda and beyond.  We then explored our Business and Human Rights Toolkit and how it could work in practice to reduce the risk of adverse human rights impacts and offer a remedy where a human rights impact is identified.

It was exciting to be part of such a dynamic interaction between business, government and civil society and to explore how they can work together to strengthen human rights protection and the Ugandan business environment.  Five messages came across loud and clear – they are not unique to Uganda; in fact they echo throughout East Africa and beyond:

1. Respect for human rights is good for business

Consumers, investors and regulators increasingly demand that businesses know and show their human rights impact.  In turn, businesses are demanding the same of their suppliers and business partners.  We heard an example of a project manager on a multi-billion dollar Ugandan infrastructure project who assessed bidders only on the basis of information already in the public domain, including on their commitment to respect human rights.  Having a Business and Human Rights Toolkit in place (including a policy, training, due diligence, reporting and an operational level grievance mechanism) can give businesses in Uganda the upper hand when it comes to competing for international contracts.

2. Failure to respect human rights has “hard” consequences

The UNGPs may be “soft” law but association with an adverse human rights impact can have “hard” legal consequences, in domestic courts and beyond.  We heard examples of civil and criminal cases brought in the Ugandan courts, and the potential application of provisions of the Ugandan Constitution and the Prevention and Prohibition of Torture Act to businesses and business leaders.  Where there is a gap in the domestic system (either in terms of substantive rights protection or procedural hurdles), foreign courts are plugging this with the application of extra-territorial jurisdiction over corporate human rights impacts framed as crimes under international law, breach of statutory duty or tort.  Civil society actors too are effectively using the UN Guiding Principles to hold businesses to account for human rights violations amongst consumers and investors.  Businesses cannot afford to treat human rights compliance as an optional exercise in corporate social responsibility.  Nor can they rely on loop holes in the domestic legal system.  The only way to reliably reduce the risk of association with adverse human rights impacts is to take steps to operationalize the UNGPs, including by implementing our Business and Human Rights Toolkit.

3. Ugandan businesses are at various stages in their human rights journey – they need tailored support and advice which reflects this

Many multinational enterprises already have human rights policies and systems in place.  Operating subsidiaries in Uganda and elsewhere are asked to comply with these policies and contribute to human rights due diligence.  This process can be further strengthened by training of key personnel in Uganda on human rights compliance and how international human rights interact with local law.

Indigenous businesses have the opportunity to create their own human rights procedures and tailor these to the local context.  As a first step, businesses seeking to comply with the responsibility to respect human rights should introduce a policy commitment, seek to implement it in their operations and adapt their existing risk management procedures to address human rights impacts, including for workers and communities affected by their operations.  Where there is a risk of human rights impacts in their downward supply chain, it may be appropriate to include human rights compliance provisions in their supply contracts.

Wherever a business is associated with an adverse human rights impact, it needs to act quickly to identify the nature of the impact and the extent (if any) of its involvement.  This can be a difficult exercise, involving the collection of complex factual evidence and applying it to domestic and international legal standards.  Depending on the outcome of the investigation, it may be appropriate for the business to take steps to provide or participate in a remedy for victims.

4. Business must play a role in advocating for national legislation to protect human rights

The primary responsibility to protect, respect and fulfill human rights still rests with the state.  Like in every country, there are gaps in the Ugandan system which need to be addressed to ensure a level playing field for businesses operating here and access to an effective remedy for human rights victims.  This came up in Uganda’s recent Universal Periodic Review and it is a positive step that the Ministry of Justice is working on a National Action Plan on business and human rights.  It is crucial that business is given a voice in this process.  In addition, as a major purchaser of goods and services from the private sector, the state is in a powerful position to promote respect for human rights in the business community – business and civil society should come together to encourage the state to use this position effectively, including by introducing human rights compliance provisions in its procurement contracts and providing human rights capacity building to its partners and suppliers.

5. It is difficult to build leverage where there is little competition between suppliers

The UN Guiding Principles require that businesses use leverage over their suppliers to prevent or mitigate an adverse human rights impact.  This can work well when a buyer is in a strong commercial position, for example where it can choose between a range of competing suppliers.  But what happens when the purchaser is in a weak commercial position? We heard from businesses which rely on one or two suppliers to provide business critical goods or services.  In these circumstances, they have little leverage to require that the suppliers respect human right but can, nevertheless, be linked to an adverse human rights impact in the supplier’s operations.  Where terminating the business relationship is not commercially viable, what should the purchaser do?  There are certain steps which the purchaser can take to try and build leverage but this is not a straightforward exercise.  Ultimately, business needs the state to legislate to protect human rights and consistently enforce that legislation.  If the state requires the same human rights standards across the board, the responsible purchaser has less to fear from an errant supplier.