Introduction

Global discourse on corporate accountability is witnessing a fundamental reorientation. For decades, governance of transnational corporations (TNCs) on human rights and environmental standards was relegated to voluntary initiatives and the widely used but indeterminate concept of Corporate Social Responsibility (CSR). The limitations of this voluntarist approach have precipitated a decisive turn towards “hard law,” as continued corporate impunity for environmental degradation, labour exploitation, and community displacement necessitates stricter regulation. The rapid proliferation globally of Mandatory Human Rights Due Diligence (mHRDD) legislation epitomises this shift.

Leading this legislative wave are instruments such as the French Duty of Vigilance Law, the German Supply Chain Due Diligence Act (LkSG), and the European Union’s Corporate Sustainability Due Diligence Directive (CSDDD). These regimes statutorily mandate companies to identify, prevent, mitigate, and account for adverse human rights and environmental impacts throughout their global value chains. This specific formulation of due diligence, rooted in Pillar II of the UN Guiding Principles on Business and Human Rights (UNGPs), operates as an internal, corporate management process.

While this transition represents a significant and timely advancement in the field of Business and Human Rights (BHR), it remains underpinned by a distinctly Western regulatory imaginary. This mHRDD model envisions accountability as a linear product of formal state legislation, bureaucratic corporate reporting, and judicial remedy through formal state courts. What is implicit in this framework is a diffusionist assumption that; effective regulatory innovation flows from the “developed” legal systems of Europe to the “under-regulated” zones of the Global South. Consequently, the global BHR agenda often focuses on how to “transplant” these Western models into African legal systems to fill a perceived regulatory vacuum.

This contribution challenges that assumption. African states should not approach the mHRDD debate from a regulatory void, but rather embrace legal pluralism and a Human Rights-Based Approach (HRBA). From this perspective, the African continent has a rich, dynamic ecosystem of accountability mechanisms that already function as “de facto due diligence.” Accordingly, this piece argues that, rather than relying solely on transplanted Western regulatory models, African states should pursue endogenous and context-responsive legally binding mHRDD frameworks, rooted in local legal traditions, governance systems, and community experiences of corporate harm.

Legal Pluralism and HRBA

To accurately identify and analyse the existing foundations of due diligence in Africa, it is necessary to move beyond a legal positivist framework that looks only for statutes explicitly labelled “Due Diligence Act.”

Decoding Legal Pluralism in the African Context

Legal pluralism is the condition in which two or more legal systems co-exist within a single social field. In the African context, it constitutes a defining reality of the post-colonial legal order emerging from the historical imposition of colonial law alongside resilient indigenous legal orders.

For a transnational corporation operating in Africa, overlapping normative orders shape accountability. These include state law (formal statutory frameworks enforced by state courts, such as Mining Codes); customary law (indigenous laws governing land tenure and family, legally recognised by many African constitutions and serving as the primary source of law for the rural communities); regional law (supranational norms generated by the African Union and regional economic groupings); and living law (actual social norms and practices accepted as binding by communities.)

Mainstream BHR discourse often treats this pluralism as a source of “risk” or uncertainty. This contribution however, repositions legal pluralism as a resource. Thus, while state law provides technical regulation, customary law often provides the mechanisms for social legitimacy, participation, and restorative justice. Therefore, recognising legal pluralism enables the identification of “de facto due diligence” obligations that operate outside of statutory law such as a customary law requirement to obtain the community consent before accessing land.

The Human Rights-Based Approach (HRBA)

Building on the above, integrating the Human Rights-Based Approach transforms these pluralistic normative practices from a technical exercise into a rights-centric framework. In this way, applying the HRBA to corporate accountability shifts the analytical lens from business risks to rights-holder risks. It frames participation not merely as a stakeholder management tool but as a substantive human right. In doing so, the HRBA shows that due diligence functions are already embedded in African administrative procedures and traditional institutions, even if they take different forms from the European model.

The Pitfalls of Western Models in an African Context

To understand why an endogenous African approach is necessary, we must unpack the assumptions embedded in Western mHRDD models. Frameworks like the French Loi de Vigilance represent normative progress, but they rest on legal and institutional foundations that struggle to translate into African realities. In particular, the Western frameworks are fundamentally designed as supply chain laws. They are premised on the idea that accountability cascades vertically from a Global North buyer down to a Global South supplier. In Africa, however, the corporate presence is often not distant but proximate. Multinational corporations often operate as local actors, such as mine operators or agribusinesses occupying ancestral land. This means that core governance challenges remain territorial, not merely supply chain-based.  Moreover, while laws such as the German Supply Chain Due Diligence Act (Lieferkettengesetz, LkSG) rely heavily on risk mapping and reporting as compliance mechanisms, in Africa this frequently manifests as a “tick-box” exercise.  Companies tend to produce elaborate vigilance plans and reports in Europe that bear little resemblance to the lived realities on the ground. For example, the lived realities of cobalt exploitation in the DRC or oil spills in the Niger Delta (Nigeria).

Again, Western enforcement mechanisms rely heavily on civil liability in the home state’s courts. While some cases have succeeded, accessing European courts remains a Herculean task for most African victims because of costs, standing, and jurisdictional barriers. Imagine having to rely on foreign courts, another reinforcement of legal neo-colonialism. Further, there is growing concern that stringent EU requirements may operate as a form of  “green protectionism”. In practice, many African Small and Medium Enterprises (SMEs) lack the financial and technical capacity to afford high compliance and certification costs. This risks disproportionately excluding them from global value chains, inadvertently punishing these small actors while leaving the underlying structural power imbalances that drive human rights abuses unaddressed.

Evaluating -Existing African Practices: De Facto Due Diligence

The truth of the matter is that, Africa already possesses a diverse array of accountability mechanisms that effectively require companies to identify, prevent, and mitigate harm.

(Watch: The Imperative of an Africa-focused Approach to BHR in Africa)

The African regional human rights syste, for instance, has developed sophisticated jurisprudence that effectively mandates due diligence. The 2001 decision in Social and Economic Rights Action Centre (SERAC) v Nigeria, for instance, established a foundational standard for corporate accountability. In this case, the African Commission explicitly invoked the due diligence standard, ruling that governments must require “independent scientific monitoring” and “environmental and social impact assessments” before any future industrial development.

Later cases, such as Endorois Welfare Council v Kenya and the Ogiek case, further elevated these requirements. They transitioned the standard from mere “consultation” to “effective participation” and Free, Prior, and Informed Consent (FPIC) for development on indigenous land. The Court also established a right to “reasonable benefit sharing,” ensuring corporate operations actively yield tangible benefits for host communities.

Turning to Environmental and Land Governance, African statutory frameworks for environmental and land management embed robust procedural mechanisms. Unlike early Western environmental laws that focused purely on biophysical impacts, most African Environmental and Social Impact Assessment (ESIA) regulations explicitly require human rights-aligned social impact assessments. An example is South Africa’s National Environmental Management Act (NEMA), which compels companies to identify affected communities, consult through public hearings, and mitigate harm. Additionally, many African states codify the “Social License to Operate.” Through Community Development Agreements (CDAs), especially in Nigeria, Sierra Leone, and Guinea, mining companies must negotiate binding benefit-sharing and risk-mitigation contracts with communities as a strict condition of licensing.

Further, for Africa a truly endogenous framework must recognise accountability embedded in customary law and community governance. While Western laws debate whether to require FPIC, in Africa FPIC is a pre-existing requirement of customary land tenure in many countries. Although it still happens in some jurisdictions, the law does not allow traditional authority to alienate communal land without the community’s consent, effectively placing a mandatory stop sign on unapproved corporate activity.

Furthermore, the Southern African philosophy of Ubuntu (“I am because we are”) challenges the Western notion of the corporation as a separate, profit-maximising entity. South Africa’s King IV Report on Corporate Governance integrates Ubuntu, shifting from shareholder primacy to an inclusive stakeholder model that infuses contract and delict law with principles of communal responsibility. Finally, traditional public assemblies such as the Kgotla in Botswana or the Palaver in West Africa function as culturally legitimate, restorative grievance mechanisms. They offer transparent, accessible forums for resolving company-community disputes long before formal court intervention is needed.

Community engagement is critical for meaningful human rights due diligence in African contexts.

Civil Society Monitoring role

African civil society has pioneered methodologies for monitoring corporate conduct. These include the use of “shadow reporting” to document abuses, as well as Community-Led Impact Assessments (CLIAs) which empower affected communities to conduct their own counter-assessments. These approaches generate independent, community-driven data that challenge official narratives and compel companies to address overlooked human rights risks.

Why Africa Must Develop Endogenous mHRDD Frameworks?

Overall, the evidence presented leads to a compelling conclusion: Africa is not a regulatory vacuum waiting to be filled by Western laws.

Scholars of comparative law warn against “legal transplants,” the importation of laws without regard for the local legal culture. Blindly importing laws such as the European “Supply Chain Act” into Africa risks creating a “phantom law” that exists on paper but holds no traction in reality. A framework relying on complex bureaucratic reporting and foreign civil liability will undoubtedly face an implementation gap. It also risks undermining local agency, reinforcing the notion that accountability is something “done to” Africa rather than a standard Africa demands for itself.

Instead, African states should pursue endogenous binding mHRDD frameworks. A system that codifies the SERAC principles, enforces FPIC based on customary land tenure, and strengthens the role of the Kgotla will inherently resonate with the “living law” of the African people. It merges Ubuntu’s moral authority with the African Charter’s legal weight. Therefore, developing an African model allows the continent to assert sovereignty, set its own standards for responsible business, and align them with domestic development goals.

Implications for Global BHR Debates

An African-led approach to mHRDD has profound implications for the global field of Business and Human Rights due to the following:

1. The African model will shift the focus from “regulating the supply chain” to “regulating the territory,” emphasising a state’s duty to protect its people from all corporate actors within its borders. This enables host states to mandate strict corporate compliance, assert direct jurisdiction over foreign parent companies for local harms, and prevent TNCs from exploiting fragmented domestic laws.
2. The African Charter is unique in its emphasis on “Peoples’ Rights.” Therefore, an African mHRDD framework will place collective rights to development, the environment, and resources at the centre of the debate, challenging the individualistic bias of Western human rights law.
3. Africa has staunchly supported the UN Binding Treaty on Business and Human Rights. However, an endogenous African treaty could provide a complementary blueprint for addressing gaps in extraterritorial accountability while strengthening host-state regulatory, institutional and enforcement capacities to prevent and remedy corporate human rights abuses.
4. Further, including customary dispute resolution mechanisms will offer the global community a model for non-judicial remedies that are restorative, accessible, and culturally appropriate.

Conclusion

The narrative that African states are passive recipients of global regulatory trends must be discarded. The continent has a robust accountability infrastructure. The core elements of a sophisticated Human Rights Due Diligence regime are already present, from the groundbreaking judgments of the African Commission on Human and Peoples’ Rights to customary dispute resolution mechanisms.

The remaining challenge is only the political and legislative work of weaving these distinct threads into a coherent, binding national and regional framework. African states can move beyond the implementation gap of transplanted laws and build a legally sound, culturally grounded, and effective system of corporate accountability that protects the dignity of their peoples. This is not just an African imperative; it is a critical contribution to the global search for a more just economic order, offering a model that genuinely bridges the gap between the corporation, the state, and the (African) communities.