By Nicole Vander Meulen
Legal and Policy Associate, International Corporate Accountability Roundtable
On November 13, 2017 the Learning Lab hosted a one-day workshop in Pretoria, South Africa, bringing together relevant stakeholders to explore ways to operationalize the UN Guiding Principles on Business and Human Rights and the Sustainable Development Goals in Africa through public procurement laws, policies, and practices. The workshop was co-organized by the International Corporate Accountability Roundtable (ICAR), the Danish Institute for Human Rights (DIHR), the Geneva Centre for the Democratic Control of Armed Forces (DCAF), and the African Procurement Law Unit (APLU).
The workshop included a short morning session on public procurement and human rights broadly, with the main focus of the day being on: 1) public procurement of private security and military services, and 2) public procurement and sustainable development. The presentations and discussion during these two sessions are briefly summarized below, and additional resources including the workshop concept note, agenda, and presentation slides are can be found here.
Public Procurement of Private Security and Military Services
During the session on public procurement of private security and military services, presentations were given on the following topics: 1) public procurement of private security and military services in Namibia, 2) regulation of the private security industry in South Africa, and 3) DCAF’s new Contract Guidance Tool. Throughout this session participants also discussed broader issues related to the private security and military services industries, as well as challenges to integrating human rights considerations into the procurement of these services.
Participants first discussed public procurement of private security and military services (and other defense spending) in Namibia. Several key issues were identified, including that 1) despite being a mostly peaceful and stable country Namibia spends a significant amount of money on defense, 2) that defense related procurement is carried out in a non-transparent manner, and 3) that there are problematic ties between Namibia and North Korean companies. Participants also delved into the new Namibian Public Procurement Act of 2015, highlighting that while on paper it is a good piece of legislation and brings public procurement law in Namibia more in line with Article 9 of the UN Convention Against Corruption, unfortunately the Government has not effectively implemented the Act. It was also noted that there are still large gaps within the law, which allows for broad exemptions in relation to defense and security related procurement.
Secondly, participants discussed the regulation of private security companies in South Africa by the Private Security Industry Regulatory Authority (PSiRA), following a presentation on PSiRA’s mandate and activities. A key part of PSiRA’s regulatory role is its legally binding code of conduct, which states, for example, that security service providers cannot infringe on rights included in the South African Bill of Rights. Participants noted that while there is value in PSiRA’s code of conduct, it could be improved by fully aligning it with the UN Guiding Principles on Business and Human Rights. It was also noted that PSiRA works to make sure that the industry advances previously disadvantaged individuals, and that although PSiRA is not technically involved in the enforcement of labor laws, PSiRA has ended up playing a role in regulating working conditions for employees of private security companies.
Finally, participants were introduced to a new tool developed by DCAF to provide guidance to procurement officers on how to integrate human rights into the procurement of private military and security services. This tool is the “Contract guidance Tool for Private Military and Security Services: Promoting Accountability and Respect for Human Rights and International Humanitarian Law.” For more information about this tool, please see this previous blog post available here.
Session on Public Procurement and Sustainable Development
During the session on public procurement and sustainable development, presentations were given on the following topics: 1) sustainable public procurement in Namibia, 2) sustainable public procurement in the Western Cape, and 3) sustainable public procurement in South Africa more broadly. Throughout this session participants also explored the linkage between public procurement and sustainable development, relevant international instruments, and discussed the case for sustainable public procurement.
Participants again discussed Namibia’s new Public Procurement Act 2015, this time with a particular focus on how sustainable public procurement is incorporated into the Act. For example, it was noted that environmental objectives are included in the new Act, which was not the case under the previous law. Participants also discussed challenges to sustainable public procurement identified in Namibia, including: 1) a lack of understanding of what sustainable public procurement is, 2) a lack of technical and management capacity, and 3) tension between sustainability objectives and other objectives, such as the objective of supporting and building up local suppliers that may not be able to meet sustainable criteria at this time. Given these challenges, it was noted that sustainable public procurement practices and criteria need to be tailored and made suitable for developing countries like Namibia.
Next, participants delved into the Western Cape’s sustainable public procurement policy and its implementation, and also had a more in depth discussion about green procurement (e.g. how life cycle costing works) and their forthcoming guidebook that unpacks practical examples of sustainable procurement. Finally, participants discussed public procurement and sustainable development more broadly in South Africa. For example, it was noted that public procurement is a policy tool in South Africa that has been used to try to address discriminatory and unfair practices that took place during Apartheid.
Through this one-day workshop, participants began to explore public procurement in Africa and how it can be utilized to encourage the uptake of human rights related business practices in the private sector and advance human rights and sustainable development more broadly. In particular, participants were able to begin to explore ways that public procurement can be used to operationalize the UNGPs and Sustainable Development Goals, learn from one another’s experiences, and share relevant updates and information about public procurement of private military and security companies and sustainable public procurement from specific jurisdictions. However, much remains to be explored and discussed, and given the interest in the subject it is our hope that a network on public procurement and human rights in Africa will soon take shape.