PETER FRANKENTAL: Lessons for corporate accountability from Kabwe mine lead poisoning case

Wouldn’t it be great if the main lesson learnt from historic legacies is that it couldn’t happen today?

Sadly though, decades of accumulated lead contamination that have affected the health of generations of children in Kabwe, Zambia, has been replicated across multiple countries and contexts, particularly in mining. And, without accountability today for harm caused by their past activities, companies have less incentive to avoid future harm.

In announcing its second highest interim results, and a £1.2bn payout to shareholders at the end of July, Anglo American reiterated its commitment to enabling the future sustainably. While looking to the future is imperative, the company has failed to address its toxic legacy in Kabwe, where generations of children have been poisoned with lead from a former Anglo mine.

Anglo American had a stake in the Broken Hill lead mine from 1925 until 1974, where soil lead levels are as much as 10 times recommended safety levels. A class-action case against Anglo, which seeks compensation for the people of Kabwe, has been filed on behalf of a class estimated to comprise more than 100,000 individuals, predominantly children under 18 and girls and women who have been or may become pregnant in future.

The suit is an important milestone in the battle to ensure corporate accountability, and justice for the communities negatively affected by mining activity.

“Human rights” are considered a key pillar of the sustainable future to which Anglo American pledges commitment, and the concept is used broadly in its 2021 annual report. But how material are human rights to Anglo’s prospects?

The answer lies in the report’s “principal risks & uncertainties” section, which sets out how those risks are mitigated. Anglo lists 13 main risks, including natural catastrophe risks, product price volatility and cyber security.

Legal liabilities arising from the impacts of its operations on the health of affected communities doesn’t feature as a risk. The right to life, the right to health, and the right to remedy arising from contamination are not issues the company feels it needs to address as a principal risk & uncertainty. These are not issues that are flagged to shareholders as sufficiently important to require action; nor do institutional investors demand that Anglo address them.

‘ESG controversy’

But maybe investors should. In 2020 Societe Generale undertook a study to quantify the effect of “high ESG controversy” events on stock performance. The firm based its analysis on 80 past environmental, social & governance (ESG) controversies spanning multiple regions and sectors. It was found that a controversial event halts the rise in a stock price, causing it to underperform the MSCI world index for a sustained period. Before the high controversy event these companies were typically performing in line with the market.

Anglo does have a group-wide human rights policy, which states explicitly that “where we have caused or contributed to adverse human rights impacts, we will contribute to their remediation as appropriate”. But clearly the company is not contributing to their remediation as would be appropriate. The evidence seems overwhelming that Anglo has caused and contributed to adverse human rights impacts at the Kabwe operations.

It would be appropriate for Anglo to provide compensation to the victims and their families, to fund an effective blood-screening programme for children and pregnant women, and fund the cleanup of contaminated soil where lead levels remain many times higher than the internationally determined limit.

So much for the company’s human rights policy. Anglo’s failure to conceptualise the human rights impacts of its operations as a principal risk to address, challenges us as human rights campaigners and lawyers representing victims of abuses: to create risk for companies.

This is exactly what the legal cases against companies attempt to do. These cases push at the narrow boundaries of what companies consider to be threats to their business arising from their human rights impacts. The work of Leigh Day and other law firms has pushed those boundaries for many years.

Guiding principles

In light of the UN guiding principles on business & human rights adopted by the Human Rights Council in 2011 and endorsed by governments, business associations, international NGOs and trade unions, we may have expected these boundaries to move more quickly.

Yet, despite the development of global human rights standards for companies there is a striking contrast between the obstacles faced by communities in Nigeria and Zambia to have contamination cleaned up, and the swift justice meted out to BP when it was US citizens whose environment and livelihoods were affected.

How many governments have effective regulatory bodies in a position to assess hundreds of pages of impact assessments? This isn’t just a problem in the Global South. That is the context in which the Kabwe class-action suit is being pursued — multiple failings by companies to implement applicable international human rights standards; and multiple failings by governments to hold companies accountable.

A positive outcome of this class action would provide the affected people of Kabwe with a remedy, which could contribute towards halting the cycle of harm that has persisted for generations. It would end the impunity that encourages mining companies to pay little attention to human rights impacts at the outset of a project, and to ignore legacy issues afterwards in the belief they can get away with it.

It is because there is so much at stake here that Amnesty International decided to intervene in the case by submitting an amicus brief to the high court in SA, setting out why this case should be allowed to proceed. This is not just about the rights of the people of Kabwe to a remedy, but also about preventing future abuses anywhere in the world, particularly on this scale.

• Frankental is economic affairs programme director at Amnesty International UK.