Upholding the Non-Delegable Duty: Eradicating Corporate Impunity to Safeguard Africa's Children

By Mihretab Mekonnen Beyene/ GICJ

The emergence of the Business and Human Rights (BHR) field signals the historical failure of state-centric governance to effectively address corporate-related harms. In Africa, the introduction of business accountability remains a complex but non-negotiable undertaking. The vast power of multinational enterprises (MNEs), coupled with the slow development of national legal standards, has created a dangerous vacuum. This regulatory landscape is fragmented, frequently imposing universal norms without due consideration for the contextual disparities and the specific local, socio-economic, and political factors unique to African States. This failure of regulatory capture allows companies to operate without adequate domestic rules, resulting in a significant governance gap and fostering a permissive environment for corporate wrongdoing.

Crisis of Exploitation: Structural Child Vulnerability

Empirical evidence confirms an acute and escalating crisis of structural child vulnerability across the African continent. This crisis is fueled by systemic exploitation within key high-risk sectors, including extractive, agricultural, and manufacturing industries. In nations reliant on foreign investment in natural resources, the emphasis on large-scale infrastructure and extractive projects severely exacerbates the risk environment for children.

This exposure results in egregious violations of the Convention on the Rights of the Child (CRC), leading to interconnected deprivations—such as food insecurity, educational exclusion, and severe health degradation—that result in irreversible and intergenerational consequences. Children represent a uniquely structurally vulnerable cohort, lacking legal capacity and reliant on primary duty bearers, making them disproportionately exposed to the adverse business impacts of corporate operations, a risk further compounded by the digital commodification of childhood. The documented rise in child labour over the last five years signals a massive breakdown in enforcement and an urgent accountability deficit.

The Paradox of the Normative Framework

The global community has established a robust normative framework, including the UN Guiding Principles on Business and Human Rights (UNGPs) and the Children’s Rights and Business Principles (CRBP), clearly delineating the corporate responsibility to respect human rights and the State's duty to protect children.

However, the inherent non-binding architecture of these soft law instruments presents a critical paradox. While soft law establishes normatively potent standards of anticipated conduct and acts as a catalyst for corporate accountability by facilitating the internalization of international norms, a voluntary compliance model alone is demonstrably insufficient to curb systemic corporate malfeasance. The lack of legal enforceability renders soft law ineffective in preventing serious corporate-related child rights violations. This necessitates that any international endeavor to regulate corporate activities must be inextricably linked to legally binding frameworks through domestic implementation.

The enduring challenge lies in addressing the 'governance gap' that creates a 'permissive environment for corporate wrongdoing' and framing reasonable mechanisms to implement the "Protect, Respect and Remedy" framework across the continent.

The Host State Imperative: Achieving Normative Coherence

The ultimate responsibility for safeguarding children lies with the State, which holds the non-delegable primary duty under International Human Rights Law. Corporations, despite their growing responsibility, cannot substitute for the legal authority and accountability structures of the government. This premise confirms the futility of relying on voluntary measures to adequately mitigate children's rights violations.

Attempts to regulate MNEs through extraterritorial obligations or aspirational binding international treaties are often complicated by geopolitical resistance, normative gaps, and protracted negotiations. Therefore, domestic jurisdictional competence is not merely preferred but is indispensable. African States must move decisively to adopt a context-based domestic regulatory regime. This approach ensures that key human rights concepts are appropriately interpreted and integrated within local legal systems.

This proactive approach requires a holistic enforcement strategy built on three interdependent pillars of normative coherence and accountability: Legislative Transformation, which compels the enactment of binding domestic legislation to explicitly operationalize the corporate responsibility to respect, including the due diligence component derived from international standards, thereby preventing adverse business impacts on child rights; Robust Oversight and Monitoring, established through transparent and effective accountability mechanisms, specifically by strengthening labour inspectorates and establishing accessible non-judicial grievance mechanisms to efficiently investigate and adjudicate violations; and crucially, guaranteed Access to Effective Remedy and Reparation, which necessitates providing victimized rights-holders with guaranteed legal standing within child-sensitive justice systems and the requisite support to seek comprehensive reparation.

Geneva Centre for International Justice: Position and Call

The Geneva Centre for International Justice (GICJ) asserts that the persistent governance gap that shields corporations from liability for child rights violations is unacceptable and constitutes a fundamental failure to protect the continent's most vulnerable. We call upon all African States to immediately recognize the inadequacy of voluntary measures and external regulation. The non-delegable primary duty must be exercised through decisive national action. GICJ mandates the urgent and prioritized implementation of the comprehensive holistic enforcement strategy outlined above, ensuring the rapid operationalization of international BHR norms into binding domestic law to end corporate impunity and secure comprehensive reparation for victimized rights-holders.

Conclusion: Advancing Domestic Jurisprudence

The time for mere policy affirmation is over. To translate universally agreed-upon standards into reality, the State must leverage the international normative framework to create enforceable national laws. Strengthening local platforms and fostering domestic jurisprudence on business and children's rights are the indispensable next steps.

Domestic solutions are crucial for the effectual enforcement of these standards and the cultivation of a culture of children's rights within businesses operating in Africa. This demands not only robust legal architecture but also an unwavering emphasis on capacity building, stakeholder engagement, and efficacious enforcement.