The Corporate Impunity Tentacles

New

Sep 21, 2020

Story

Leonida Odongo

Kenya

Joined Oct 2, 2008

In the African continent, corporate impunity is as old as colonisation. The main reason for colonisation was to get access to raw materials from Africa. Additionally Africans were sources of free labour imposed through legislations such as Hut Tax. Land was also taken away from the African people through creation of European only settlements such as the White Highlands in Kenya and other forms of racial segregation. Many companies benefitted early on during colonialisation such as shipping companies responsible for transporting goods from African countries into Europe, insurance companies as well as companies responsible for processing goods.

Some of the earliest companies in Kenya include Unilever, which is subsidiary of an Anglo-Dutch conglomerate and is involved in the production of tea mainly for export. As early as 1914, Tom Rutten then in charge of Brooke Bond in Calcutta during a hunting safari to Kenya realised the country was ideal for growing tea, a sales office was opened in Mombasa 1922 and in 1924, approximately 400 hectares of land was acquired in Limuru and a tea factory built.[1] In order for tea factories to be built in Kericho, hundreds of local community members were evicted.[2]

With colonialism, land was divided broadly into native land and white highlands. Native agriculture was mainly subsistence, whereas in white highlands cash crops such as tea, coffee was grown. Natives were also banned from growing cash crops. Forced labour was implemented through legislations such as Hut Tax meaning that the native had to seek work in order to be able to pay the taxes. The economic division is also the main reason for the emergence of informal settlements in a country like Kenya.

The exploitation of workers through long hours, inadequate protection and forced labour that was happening during colonialism goes on to date. This is exemplified through violation of workers rights, lack of protective gear .In some instances more so in plantations there is aerial spraying, aeroplanes do the spraying because the landmass under plantations covers thousands of acres. Many women complain of coughing and rashes during spraying period. Additionally the work is back breaking. There are also cases of sexual violence especially meted on women by male co-workers. Promotion is another challenge for female; women do not get easily promoted compared to their male counterparts.

In the salt companies located along Kenya’s coastal belt, community struggle take a more sinister angle. From forced evictions, to arbitrary arrests of community members who oppose their land from being taken away by the salt companies. Communities live in fear of either arrests or evictions. Additionally, the salt companies continue to expand thus taking away more arable land belonging to communities. Human rights defenders who counter corporations are not spared. Take for instance the case of Ogada[3] a Human Rights Defender (HRD) from Malindi, a farmer and a member of the Malindi Rights Forum, an organization working to protect the rights of farmers in Marereni, a coastal region of Kenya.On March 2016, the HRD was arrested on fabricated charges, released on bail the same morning and on May 16, 2016 sentences to seven years’ imprisonment for a conviction of arson[4]. His sentence was however reduced to 2 years after an appeal supported by East African Lawyers Society and Human Rights Defenders Coalition.[5]

The salt companies extractive processes has resulted into conflict between residents and salt factories, where farmers get evicted and displaced from their ancestral land.Local farmers complain of pollution from the salt mines which increased acidity of the soil making the land unproductive Furthermore, the community’s sources of clean water are polluted by the salt companies making women walk for longer distances in search of clean water. For those who work in the salt companies, the exploitation is high characterised by low wages, poor workman’s compensation in case of injuries and lack of adequate protective gear. Additionally, parts of the ocean get closed off and fishermen can no longer access fish, which is their source of livelihood.

In neighbouring Uganda, farmers are crying foul after corporations have forcefully taken away their land. According to a report titled, ‘Land Grabs at Gunpoint', land grabbing is happening on abandoned national ranches which have for long been settled on and farmed by people who settled in these areas while fleeing war and natural calamities in neighbouring areas. The report names three multinational companies-Agilis Partners, Kiryandongo Sugar Limited and Great Season SMC Limited as being at the centre of the violent evictions of people from their homes.[6]The report further states that over 35,000 people from over 20 villages are homeless after being evicted from their land to pave way for large-scale farming.[7]Sadly wherever corporations evict people, the military is always ready to protect the corporates.

Corporate impunity thrives on corporate capture, which is the means by which economic elite undermines the realisation of human rights and the environment by exerting undue influence over domestic and international decision makers and public institutions. [8]Examples include companies putting legislatures and policy makers under pressure through lobbying to benefit business interests or to remove /undermine relevant regulations that seeks to protect human rights examples those related to consumer protection, climate change or trade union rights.[9]

Corporate capture can be through community manipulation where community decisions making processes in relation to an investment project.[10]Elements of corporate capture include community manipulation, economic diplomacy, judicial interference, legislative and policy interference, shaping narratives, capture of academic institutions as well as privatization of public security goods[11].

Community manipulation occurs when community decision-making processes relating to an investment project are undermined. For example when corporates visit a community and entice local leaders either using finance and other incentives in order to support the corporate projects at the expense of the local community. There are many incidences where local area chiefs and other politicians have allocated land belonging to communities to corporations to invest .In such instances local community members are often forcefully evicted, more so without compensation. Such has happened in instances where corporates are agricultural in nature and want to invest in agri-businesses or when a corporation has mining interests. In some cases local leaders are enticed with promises of employment and at other times local leaders get intimidated and end up giving approvals due to threats, additionally, in some extreme cases, local leaders get abducted and even killed in order to force the community to relent and accept the operations of the multinational corporation in their midst. Other tactics used by corporations to milk communities dry include Corporate Social Responsibility where they adopt building of schools, offers of scholarships, hospitals or other basic institutions within the community in order to mask the would be long term economic and environmental harms that may occur in the community as a result of the operations of the company.

Economic diplomacy as a strategy of corporate impunity is when corporates get support from diplomatic missions in order to advance their interests in foreign countries. Judicial interference is another method adopted where corporations influence judicial decisions over cases that involved them. In such instances rulings are often in favour of corporations especially when communities demand accountability and remedy for a violation for example an oil spill or other forms of environmental harm.

Corporations to thwart realisation of human rights have also used legislations. Examples include when countries are forced to put in place legislations in favour of corporations for example in the mining sector, some countries give tax holidays to corporations whereas local citizens have to pay high taxes, in some cases companies are allowed to repatriate a lot of profits back to their country of origin and reinvest very little in the host country. Sadly this may be backed by local legislations under the guise of attracting foreign investment. Unfortunately despite tax holidays and the guise of attracting foreign investment, many a times corporations ensure that they do not transfer skills to the locals who end up being relegated to working in the lowest ranks such as cleaners, whereas top management of corporations are normally citizens imported from the home country.

Corporations have been known to induce public security to act on their behalf. For instance in countries which have minerals, the local security comprising of police and other armed forces are normally the ones providing security for the mining companies. When communities resist, they get brutally attacked with scores arrested in the process. In such instances, the interest of the corporations comes first whereas local citizens interests and concerns do not matter.

Corporations have also been known to manipulate the media in their favour. An example of and an areas dominated by a media narrative is Genetically Modified Organisms and food security. GMOs are touted across countries to be the solution to food insecurity, sadly the root causes of food insecurity which include policies, exclusion of smallholder farmers from decision making and lack of support to smallholder farmers are not addressed but quick fix solutions which have negative impacts in the long run are touted as the best.

Corporate impunity is also seen in privatization of services .For example prior to the Structural Adjustment Programs (SAPS), across many countries across Africa, government were providing support to their citizens in areas such healthcare, education and agriculture .The initial casualties of SAPs were agriculture, healthcare and education leading to privatization of essential services under the guise of effective service delivery. The privatization of public services is a cash cow for corporations because the mantra becomes willing buyer -willing seller, those who cannot afford private healthcare for example have to contend with long queues, inadequately stocked health centres and absentee doctors .On the other hand if one had money , they can afford to go to a private facility and get the services they require. Privatisation locks away the poor, who are the majority across many African countries from accessing services. Through privatisation corporates continue making money and sometimes they even get funding from governments to do research, which in essence ends up not benefitting the ordinary citizenry.

In the world of work, corporations are known to abuse human rights .For example many corporations tend not to respect local labour legislations. Workers get overworked and underpaid and are constantly being intimidated with firing. They cannot speak out about injustices for fear of losing their jobs.

Across many countries and depending on the weather patterns, corporations have dominated the cut flower and horticulture sector, agriculture as well as mining. Women comprise the majority among workers for example in cut flower sector. Europe accounts for 70% of Kenya’s cut flower exports. Flower exports are one of the top three foreign exchange earners; they generated 104 billion Kenyan shillings ($1 billion) in sales in 2019.[12]Despite the huge earnings, there are reported cases of rights abuse among workers in flower farms, which include poor working conditions and sexual harassment.[13]

The contradictions is that as much as corporations mint a lot of money, they do not care about the plight of workers.You will more often find workers living in squalid conditions in informal settlements because they cannot afford good living conditions, due to high rates of unemployment in many African countries and the youth bulge, corporations take advantage because if an employee refuses to work because of low pay, there are 100 other employees who will still come for the same job or even go lower than the current rate. Unemployment and rising costs of living brings timidity among workers .Yes almost every country has legislations on labour rights and workers’ compensation but this can only be in paper but in practice these rights are non-existent. It can be argued that labour rights are only applicable to those in higher echelons of the workplace such as managerial positions while for those on the lower ranks of the ladder, workers rights do not apply. It is a game of survival.

The new norm is to come up with corporate social responsibility where a few schools and a hospital are built. In many instances what the corporates extract from the community in comparison with what they leave in the community is appalling. Many a times even the locals do not get jobs in these corporations, the bulk of the jobs are reserved for expatriates. Locals only get jobs such as cleaning , packaging or as loaders.

When communities succeed to sue corporations, many a times the compensations is often inadequate and not at the current market rates. In addition, the compensation is done without the beneficiaries being taken financial literacy making it difficult for the affected community or families to invest for their future. The sudden “ richness” from compensation money is overwhelming for the affected community members, many especially men leave their homes, go to the nearest town or city, spend all the money and come back to their wife and children empty handed. The compensation money in such instances brings more problems than happiness to families. Furthermore, compensation process never takes into consideration the sentimental attachment of a family to an area or the fact that their loves ones have been buried on an ancestral land.

Seasonality of work is another phenomenon being exploited maximum by corporations. Given the seasonal nature of some agricultural products, corporations make sure that they do not employ workers on permanent basis. This means that workers are not protected and can therefore be hired and fired at will. In some cases, workers are also expected to come to purchase their own protective gear while in the workplace. In West Africa, land grabs by multinational corporations abound. For example as reported in the Association of Environmental Lawyers of Liberia and Natural Resource women Platform report on “ Struggle for Life and Land(2019)[14] cited various rights violations. This is also echoed by GRAIN who report that Luxembourg-based Socfin plantation group and its Swiss subsidiaries are involved in serious human rights violations in Liberia. Food security and access to water and education have also deteriorated in the villages surrounding the rubber plantations.

Rubber is a lucrative product, it can be used in many different ways and for common items like tires, condoms, outdoor clothing and mattresses. Global demand has more than doubled in the last 20 years. The Luxembourg-based Socfin Group has expanded its plantations in Liberia, West Africa, to provide more natural rubber for the world market. But the expansion has had devastating consequences for villages around the plantations[15].One farmer reports that when the company came, they were told it was going to improve their lives , and that when rubber monoculture plantations were developed , many people lost the fertile agricultural land on which they depended to survive. Additionally , sacred forests or graves have been destroyed and aces to water deteriorated .Furthermore , many villagers report their water has been contaminated by pesticides from the plantations[16]Sierra Leone also has reports of land grabs by multinationals for palm oil production which has resulted into two land human rights defenders being shot dead including arrests of 15 land human rights defenders.[17]

The current forms of corporate impunity is linked to discovery of new raw materials in forms oil and gas and through land grabs. Corporations have a lot of money and are often backed by a battery of lawyers , they can buy off governments and can also sue governments. With mergers and take overs, corporations are becoming stronger every day .Take for example the food industry where giant companies such as Monsanto and Bayer control seeds and chemicals .Imagine the millions of people engaged in farming across the world depend on a few companies .How many billions are made daily or during each planting, weeding and harvesting season?. Corporations are not humanitarian organisations; their aim is to make profits, not just profits but maximum profits.

With the Covid pandemic, the already precarious situation of workers in corporations is being made worse. Closure of airspaces and other related restrictions to contain Covid 19 meant that thousands of workers in cut flower, horticulture, and tea and coffee plantations had to go home .The most adversely affected were women because they are the majority of workers in the above sectors.

Globalisation has contributed to enhancing the power of corporates. With globalisation, the world is becoming smaller and people can connect across continents easily. Globalisation also increases demands for various goods and services. Additionally, it continues to make contrives be enmeshed to each other .With globalisation comes the demand for cheap labour, thus companies move from their homes of origin into developing countries where cheap labour is readily available and legislations that protect human rights are either weak or poorly implemented.

The power of corporates keeps increasing on daily basis. There needs to be alternative system in place, which looks at the plight of workers in corporations and responds effectively to their demands. This is because legislations and in some cases trade unions have not been up to the task of protecting the workforce from exploitation.

References

[1] https://www.ide.go.jp/English/Data/Africa_file/Company/kenya06.html

[2] https://www.voanews.com/africa/kenyans-forced-tea-highlands-british-colo...

[3] https://www.frontlinedefenders.org/en/case/case-history-joel-ogada

[4] ibid

[5] https://www.protectioninternational.org/en/news/update-kenyan-human-righ...

[6] https://www.grain.org/en/article/6518-land-grabs-at-gunpoint-thousands-o...

[7] ibid

[8] https://investorsforhumanrights.org/corporate-capture

[9] https://investorsforhumanrights.org/corporate-capture

[10] ibid

[11] ibid