Friday, January 29, 2010

Africa Center for Corporate Responsibility and Capacity Building in the Niger River Delta

One of the great failings of the global human rights and corporate social responsibility movements has been the difficulty of shifting the focus of the movement from Western civil society actors projecting their power into developing states to empowering local civil society actors to confront and manage locally relevant issues.  There is something a little odd about Western elements of civil society confronting western economic actors  in the west about their activities in developing states.  One of the most useful recent efforts to change this has been the work of many actors (from the West and elsewhere) to build indigenous capacity within developing states.   Among those are national programs for capacity building, like the American efforts through the United States Institute of Peace.  As that indigenous capacity grows, the tenor and scope of engagement between stakeholders around issues important in developing states is likely to change as well.  In that context,

An example of a successful indigenous civil society actor has been the Africa Center for Corporate Responsibility (ACCR) under the leadership of its executive director, Austin G.C. Onuoha.  It was established to serve as a think tank and resource center for the African continent on corporate social responsibility in extractive industries.  A recent report distributed by ACCR provides a window on a new, and indigenous, face of indigenous approaches to corporate social responsibility in developing states.  It is a lesson worth considering carefully, especially for its potential importance for regulatory efforts at the national and transnational level respecting corporations and human rights.   It is a lesson that will be as valuable for the western corporations that are now the object of the efforts of these civil society actors, as well as for other foreign actors now increasing their presence in developing states.  See Lindsey Hilsum, The Chinese are Coming, The New Statesmen, July 4, 2005; Stephanie Hanson, China, Africa and Oil, Council on Foreign Relations, June 6, 2008.

A recent project of the ACCR focused on community corporate relations in the Niger Delta.  See ACCR, Community Based Model Peace Plan for the Niger Delta (2009) (a project of ACCR with support from the United States Institute of Peace).  The Niger Delta has been the site of a complex stew of ethnic conflict, corruption, global economic activity, ecological effects, national and international law and behavior norms.  It has a long history of violence, but violence managed sufficiently well enough to permit large corporations to successful manage economic activity, especially in the extractive services sector.  See, e.g., Human Rights Watch, Background Briefing:  Rivers and Blood:  Guns, Oil and Power in Nigeria's Delta State (February 2005).  It is in the complex mix of violence and economic opportunity that ACCR became involved.  As ACCR explains it, the Niger Delta is important for its work for three reasons: (1) the region provides substantial amounts of wealth to a variety of actors, mostly outsiders (including Nigerians from other regions); (2) the people of the region bear the brunt of the ecological damage resulting from the operations of the extractive industries sector; and (3) the local people may not be well represented  because they represent a number of ehtnic and religious minority groups within the Nigerian Federation.  

It was with this in mind that ACCR participated in an Open Society Initiative of West Africa round table to address possible civil society action.    The OPen Society Initiative is grounded in  a set of core governance and aspirational principles
An open society is a society based on the recognition that nobody has a monopoly on the truth, that different people have different views and interests, and that there is a need for institutions to protect the rights of all people to allow them to live together in peace. An open society is characterized by the rule of law, the existence of a democratically elected government, a diverse and vigorous civil society, and respect for minorities and minority opinions.
Open Society Initiative , What is an 'Open Society?'. The participants determined that there was a need to define the Niger Delta and its political economy as a first step toward intervention.  ACCR, Community Based Model Peace Plan for the Niger Delta (2009) at ix.  Defining the Niger Delta as "any area, or community that is impacted by oil company operations," (Id.) the group turned to strategies and activities that might serve to address and mitigate adverse impact of all actors in tghe Niger Delta.  Id.  For this purpose, data was necessary.
In other words, participants agreed that to have any meaningful intervention in the Niger Delta, that it is important to conduct some form of baseline survey or study.  It is in line with the above and the need to give the people of the area more voice in determining what is important to them and how those should be addressed that this project was carried out. The strategy of the intervention is anchored around consultation, dialogue and community engagement. 
Id.  The important point here, of course, is the refocus of intervention, from the privileging of what civil society intervenors think is good for the local population to greater efforts to conform intervention to meet the needs of the local population as expressed by them. See id., at 1.

But decades of social engineering from outside the affected communities and exploitation have made the local population wary.  And so the "data collectors were greeted with cynicism, denial, grandstanding and outright hostility." ix. As important, the target users of the data produced their own culturally oriented difficulties.  In order to affect the intervention community--from governments, corporations and foreign civil society elements, it was necessary to conform he data to their own cultural expectations and the habits of their work. "This accounts for the extensive use of bullet points and summaries.  This is because this document is largely targeted at policy makers and those who seem not to have the time to read very long texts."  Id.

And thus was crafted a Community Based Model Peace Plan.  That plan was grounded in the initiation of cooperation through fact gathering (rather than fact "finding"), the identification of important local actors, and the parameters of any framework for satisfying the needs of all stakeholders. Id., at 1.  The focus of the activities of ACCR was centered on the data gathering and consequential relationship building in the target area.  Id., at 1-2.  The process was neither simple nor quick.  From literature review, through survey design, data collection training, the collection of data, its collation analysis and meetings leading to the production of a final report took the better part of a year.  Id., at 2-3.

The focus of data collection activity was "on Bayelsa, Delta, Rivers and Imo States.  The main reasons for this was because these four states combined produce close to 80% of the nations total petroleum output.  Moreover these four states have also been the theater for some of the worst form of violence in the entire Niger Delta."  Id., at 3. 

What did AACR find?  First that government neglect, unemployment, lack of infrastructure and ignorance were identified as the most important causes of the conflict in the Niger River Delta.  Id., at 4.  Second, that employment, infrastructural development, youth/female empowerment, education, and poverty/livelihood systems were identified as the issues most important to Niger Delta peoples.  Id.  Additionally, and not surprisingly, government, oil companies, oil producing community leaders, the Church and reputable NGOs were identified as key groups that must be involved in negotiating an end to conflict in the Niger Delta.  Id.  Interestingly, the local population insisted that governmental involvement be limited to observation rather than participation.   The government was generally viewed as one of the causes of the problems in the Niger Delta.  Id., at 5.  Also  understood as a controbutor to instability was corruption.  Id.   Somewhat inconsistently, the local populations also insisted that government, the oil producing communities and the oil companies must execute any agreement to end violence.  Id., at 5. The focus on reputation legitimacy  of NGOs suggests a distrust of "strangers bearing gifts" that go sour.  And it appears that the involvement fo the Church might serve as a means of ensuring a powerful ally to assure good faith.
The local populations were less specific on acceptable approaches to the focus of any peace agreements int he region.  The survey suggested a preference for "whatever the parties at the negotiating table agree" and "oil revenue must go directly to the communities" as their preferred alternatives.  Id., at 5.    Yet, consistent with the importance attached to the legitimacy of participating NGOs and the role of the Church, the survey revealed a preference for structuring any agreement to include monitoring by NGOs, the establishment of separate budgetary authority for its enforcement and community involvement.  Id., at 5.  There was also strong support for Church and reputable NGO facilitation of any agreements among the parties.  Id.

ACCRA's analysis fleshes out these insights from the data.   They suggest that the anger directed against the government doesn't so much suggest alienation as anger at a lack of engagement by any governmental authority.    "The implication of this is that government must also play a prominent role in bringing the crisis to an end."  Id., at 6.  But government's role in this process must be muted and respectful.  Respect first appears to require acknowledgment that the affected local communities must also participate in the process of resolving conflict.  Id.  But this has important implications.  The usual course in the face of such demands is to construct some sort of theatre of participation with no real effect.  What thew data suggested was a broader participation based on a recognition that the distinct communities in the affected region each require participation in equal measure.  "No two Niger Delta communities are the same and the impact of each oil company facility is different and unique."  Id.  Aggregation of local participation as much eviscerates it as it appears to embrace it.  Trust issues, of course, were important.  There were few outside representatives that local communities trusted.  Id., at 6-7.  Trust issues were interrwined with issues of development and the provision of government services.  Both of those, in turn, were related to issues of ethnic and religious subordination within Nigeria.
Most, if not all the demands put forward by the people of the Niger Delta as possible provisions of a peace agreement are what governments shpuld ordinarily deliver whether the area produces oil or not.  Therefore the non provision of these basic amenities to the people of the Niger Delta smacks of injustice.  Injustice which according to them, arise from their being minorities, injustice from the imposition of leaders, and injustice form corrupt leaders and impunity by oil companies.   
Id., at 8.  Thus, an emphasis on marginalization.  "In other words, marginalization is at different levels.  First marginalization at the federal lñevel, then at the state level, and local government level and finally at the community level.  They insist that this must be addressed in any peace settlement."  Id., at 10.

One might expect that this would open the door to greater involvement by economic enterprises in issues ordinarily understood as governance related.  But the opposite seems to be true.  "This leads to another major finding of the research.  Many respondents do not see much role for the oil companies both in the peace process and in community development."  Id.  The idea is that corporations must remain subordinate to governmental control, and thus, issues over which enterprises have direct control are understood as derivative of governmental authority.  This, of course, presents opportunities for enterprises, who relying on this perception, may blame the state for excesses.  "It is the view of most respondents that it is the government that caused the violence and that they should be the one repairing the damage."  Id., at 9.  

Lack of trust also appears to influence the shape of approaches to monitoring regimes.  "Because of the serial failure  o governments to deliver on their promises, people see any peace plan as being susceptible to government lethargy and neglect."  Id., at 11.  As a consequence, the preference is for transnational or extra-national monitoring mechanisms.  Interestingly, local communities focus on public rather than private organizations as best constituted to discipline state compliance with any agreement.  Private entities--either in the form of companies or civil society are less vested with legitimacy in this respect than public bodies.  A reason for that may be the conflation of legitimacy with a taxing power.  The entity that can tax sits atop the popular conception of  authority.   The ACCR quoted a traditional ruler from Imo State in a telling way: "The Federal Government has no business with oil.   They collect only taxes.  We as oil producing companies deal with oil companies. Oil companies deal with Oil Land Lords.  What we need is real fiscal federalism. "  Id., at 12. Perhaps this reflects a a transfer of the legitimacy of tribute to the taxing power.  Perhaps it suggest cultural approach to the legitimating aspects of the taxing power for public authority.  What clearly emerges, though, is the importance of symbolism in the construciton of legitimating power relationships, the endurance of notions of public authority as confiscatory, and thus constructed as suggesting a hierarchy of legitimate authority that places the power to tax well above other indicia of power.

What result?
Going through the data one message comes out clearly--and that is that communities want a framework of integrity for the development of their area.  The constitutional provisions, revenue allocation laws, and the establishment of several development bodies have not been able to address the development need of Niger Delta communities.  They therefore want a mechanism  call it peace agreement if you will, that will be specific, measurable, enforceable and time bound.
Id., at 15.  Yet the role for the enterprises at the center of the disputes appear subsumed under more fundamental tensions within the Nigerian body politic. 

"Somehow the people expressed implicit faith in democracy and democratic institutions."  Id.  But there is no corresponding faith in the economic enterprises that stand in the middle between the state and local communities.  Indeed, the multinational enterprises at the center of the disputes here seem to disappear in what becomes a battle between local and national constituencies for a division of the of income derived from the taxation of those enterprises.  Yet it would seem that there is a role for the multinational enterprise in this context.  It is in this context that a corporation's responsibility to respect human rights can help flesh out the role of the enterprise.  Local communities appear to mean to deal with the Federal Government through the economic enterprises who have negotiated for rights to exploit the nation's natural resources.  Enterprises mean to trade their arrangements with the Federal (and to some extent local) governments for immunity from having to deal with local communities.  But the tax and payment arrangements between these enterprises and the Federal government, with or without the local communities' willingness to exercise power to capture a greater portion of those tax revenues should not define the enterprises' independent obligations to local communities.  Those obligations  exist by virtue of the enterprises' activities in a place rather than as a consequence of the legal relations between the enterprise and the state.  The payment of funds (as taxes or otherwise) to a host state by the enterprise does not diminish the enterprise's obligations.  Nor are the enterprise's obligations sourced solely in the peculiar law of the host state.  Rather the corporation's obligations arise directly from its relationship to those it affects in the course of its operations within a locality.  In this sense, the obligations of the oil sector businesses in the Niger Delta flow  directly to the members of the local community.  They are defined by the host of well respected international norms , amny of which bind states as well.   In the context of ACCR's work, this suggests a greater role for the Niger Delta oil sector enterprises, one that recognizes their double obligations--up to the federal government as the host state and down to the local communtiies as the stakeholders who most directly feel the effects of corporate activity.

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