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Opinion

18 May 2022

Author:
Lawyers for Community Alternatives

Winning the battle for community access to confidential information in West Africa

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How can communities get access to the confidential, technical, or hidden information they need to seek justice for human rights, environmental, and land rights abuses? It sometimes seems like a rigged game in which corporations and governments hold all the cards. But the members of the Public Interest Lawyering Initiative for West Africa (PILIWA) are breaking new ground to show that from the courtrooms of the U.S. and Europe to the halls of justice in West Africa, there are ways to draw back the curtains and drag secrets into the light.

Take the work of Groupe pour la Recherche et le Plaidoyer dans les Industries Extractives (GRPIE) in Côte d’Ivoire, for example. In their efforts to support the beleaguered community of Similimi, they have used a procedure called requête aux fins de compulsoire (French for “records search request”) to send bailiffs under court orders to collect documents from Bondoukou Manganese S.A. and government agencies alike. The compulsoire procedure has already helped Similimi residents identify procedural gaps in mining concession awards and analyze contracts and permits that were not previously in the public domain, making clear the environmental and social obligations that the mining company is required to respect. It’s often thought that countries with civil law systems (like the former French colonies in Africa) are too rigid to give parties the chance to uncover evidence that they can use in a lawsuit, but GRPIE’s lawyers have shown that’s not true.

Then there are the strategies employed by the Network Movement for Justice and Development (NMJD), who have combed every possible source to prove that the Octea Group of diamond mining companies is responsible for devastating environmental and social impacts in Koidu, Sierra Leone. Early on in the Koidu community’s lawsuit against Octea, NMJD’s lawyers used documents released with the Panama Papers to prove that some of Octea parent companies were actually present in Sierra Leone and could be sued in local courts. They’ve extracted electronic records from bankruptcy proceedings in New York to convince local courts to freeze Octea’s assets on the basis that they are in danger of being siphoned out of the country. And now they have teamed up with EarthRights International in the U.S. to use the Foreign Legal Assistance Act (28 U.S.C. 1782) to review a trove of documents produced under seal in litigation between Octea’s parent company and its rivals that may help them to prove legal responsibility throughout the corporate group. In all, these efforts show that a global approach to evidence gathering and identifying potential stakeholders can yield tremendous results.

Finally, Advocates for Community Alternatives and the Center for Public Interest Law in Ghana are working to expose unethical land deals by traditional leaders and external developers. Their efforts are focusing on a provision of the 2020 Land Act that creates a clear pathway for community members to demand accountability for the use or disposal of customary lands. In a country where chiefs are often accused of selling out community land to corporate interests, this as-yet untested tool has the potential to shift the balance of power in favor of the people. ACA and CEPIL’s strategy highlights the opportunities presented by laws related to fiduciaries – a category including both chiefs and corporations – which often impose underappreciated duties of transparency and accountability that can be used by communities.

Of course, the stories are not all positive. An attempt to apply the Ivoirian compulsoire strategy in Senegal was deferred by the court because the parties were not yet in active litigation, and Liberian groups’ attempts to use the Freedom of Information laws of Liberia have been frustrated by bureaucratic red tape and the chaotic state of official records. But PILIWA’s experiences are providing a glimmer of hope that, with a little creative lawyering, we can unstack the deck of secret corporate evidence to give ordinary people and communities a fighting chance.