In Sierra Leone-UK mining case, a new attempt to measure the arm of the law

Claimant Alfa Dabo spent months in the hospital after being wounded by police in November 2010 . " The money that my father had been saving for the family has been spent on me alone. I would like to pay them back," he says. "My brothers were deprived of an education." James Courtright

When the police came they did not ask, they did not inform the people,” remembers Fadda Kargbo, a farmer whose village is tucked into the verdant Sula Mountains of northern Sierra Leone. “They just started firing.”

On that day in November 2010, the brutal civil war had been over for eight years – ushering in a surge in foreign investment, from mining to industrial farms. Home to some of the world’s largest iron ore deposits, more than 200 square kilometers of Sierra Leone had been leased to African Minerals Limited (AML), a London-based multinational. But talks over plans for AML to build a dam near their mine in Mr. Kargbo’s village, Kemedugu, turned heated, with many locals refusing to consent.

Yet a few days later, they say, farmers woke to bulldozers uprooting their crops. The conflict escalated, with residents setting up barricades to trap the bulldozers. After negotiations with AML representatives failed, a truckload of police arrived and fired tear gas and live rounds into the air, according to a Human Rights Watch report. Residents fled for the hills as police broke into their homes. Dozens were arrested, and some severely injured.

“The authorities that we expected to intervene on our behalf did not – they actually made the problem worse,” says Kargbo.

Kemedugu residents are among dozens of claimants who have sued Tonkolili Iron Ore Ltd., which operated the mine, and AML, its former parent company, in British courts, alleging that they were complicit in violent police crackdowns in 2010 and 2012 – claims the companies deny. Legal experts warn that, even if they succeed, the case is unlikely to bring quick change on the ground. But a judge’s decision to visit Sierra Leone earlier this year to hear testimony from claimants – believed to be the first time a British judge has done so – has raised the possibility of a new precedent in how cases for corporate accountability overseas are handled.

“It’s a very big decision on the behalf of the UK judge to go and hear the claims against English-based [corporations] in Africa,” says Ekaterina Aristova, a doctoral candidate studying law at the University of Cambridge. The judge “is realizing how important it is for England as the state where the headquarters of the company are based to investigate and to examine the impacts of their operations in the world.”

Complex legal landscape

When mining operations started up in 2010, some residents were hopeful. People in Bumbuna, a sleepy town at the base of the mountains, expected an influx of jobs and infrastructure. In the iron-laden hills above, villagers say they were promised roads, schools, and hospitals, in addition to payments for the land.

But some villages were told they would be relocated to make way for the mine – without their informed consent, they say. As the company began hauling iron ore from the hills, tensions increased, and once again came to a head in April 2012, when police responded to workers’ protests in Bumbuna by firing tear gas and live ammunition. At least six people were shot, one of whom died, according to Amnesty International.

“What we saw on that day can be compared to what we went through during the war,” one witness told the Human Rights Commission of Sierra Leone (HRCSL). “We were worried to imagine we were going to lose all we have worked for a second time.”

Around Tonkolili and other large investments, local authorities “either connive with the company or they receive pressure from central government,” says Abdulai Yollah Bangura, head of the Business and Human Rights Unit at the Human Rights Commission of Sierra Leone.

The “close relationship” between police and AML “raises serious questions about the ability of the police in Bumbuna to independently maintain public order and enforce the rule of law in an impartial manner,” Amnesty International wrote in a report on the Bumbuna incident.

Rights groups around the world have raised similar questions about international mining and oil companies’ influence on abuses, from Kazakhstan to Indonesia. For decades, victims in developing countries have explored options to hold multinationals accountable in Western courts – but often without success.

In the United States, plaintiffs’ lawyers have typically attempted lawsuits using international human rights law. Across the Atlantic, however, more courts have been experimenting with the principle of foreign direct liability: foreign citizens coming to courts in Europe, claiming multinationals were liable under domestic law for damages caused by their operations abroad.

Establishing foreign direct liability (FDL) is notoriously complex, however. Multinationals’ parent companies are often based in Western capitals, with subsidiary companies running the operations abroad, and they are technically separate legal entities. This complicates determination of jurisdiction (which country’s courts have authority to hear a case) and liability, says Lucas Roorda, a doctoral candidate studying foreign direct liability at Utrecht University in the Netherlands.

James Courtright

“Let’s take Nigeria as an example,” says Mr. Roorda, referring to attempts to prosecute Shell for environmental damage. “Now if you want to go into a European court and say we have Shell polluting our rivers, what you’re basically saying is we have a Nigerian company that’s also called Shell, we have Nigerian plaintiffs, and in fact it all took place in Nigeria – and the British court has no connection or jurisdiction on that issue.”

The lack of case law from previous cases – multinationals usually settle before cases reach trial – has also left uncertainty about what evidence is needed to hold a parent company accountable. In addition, claimants generally face serious practical problems such as traveling to Western courts and finding and paying for legal representation – making the judge’s decision to visit Sierra Leone this February to hear testimony, after witnesses and claimants were denied travel visas to Britain, a significant help.

Previous cases were “all done with words,” Roorda says. “Actually going there and seeing for yourself what the impact is of a particular way of operating by companies, seeing what it means to actually work there and be subjected to these police operations, I do think that affects judges more than just the case on paper. That doesn’t mean it’s an open and shut case,” he cautions, “but it changes the game.”

The judge’s visit offers an example of how cases could be “practically and efficiently administered in the future,” says Ms. Aristovia. “It is a very good example saying in the globalized world, in the modern world, practical convenience should not be such a decisive factor in favor of one [legal] forum or another.”

Only a handful of FDL cases have actually been heard in courtrooms, and as of yet none have received a final judgment. Most cases in Britain, including the case against AML and Tonkolili, have been brought by Leigh Day, a firm with a reputation for taking on multinationals.

In the past, corporations have typically tried to settle cases after they get jurisdiction. But some are now trying to take cases all the way to judgment, Roorda says, in an effort to set a precedent and discourage future lawsuits. One hundred and one of the original 142 claimants represented by Leigh Day in the Sierra Leone case have already settled.

But a judgment in the remaining claimants’ favor could set an example, such as by creating guidelines for how companies engage with police and security forces. “That could set quite an important precedent,” says Astrid Perry, a litigator at Leigh Day.

For many living near Tonkolili, however, what matters is here and now. Claimant Alfa Dabo spent months in the hospital after being wounded by police in November 2010. “The money that my father had been saving for the family has been spent on me alone. I would like to pay them back,” he says. “My brothers were deprived of an education.”

Even a verdict is unlikely to impact day-to-day operations at the mine, however. In 2015 Tonkolili Iron Ore was bought out by Shandong Iron and Steel, a Chinese company, and nearby villagers have complained of ongoing environmental damage: rice-growing swamps polluted by iron tailings; the village’s main stream left undrinkable. Namati, a global legal-empowerment organization, has filed proceedings against Tonkolili Iron Ore and Shandong in Sierra Leonean court for flouting environmental regulations.

“The fact is that these companies operate in Sierra Leone,” says Sonkita Conteh, director of Namati in Sierra Leone. “It’s all well and good for them to be held accountable in court in the UK, but at the end of the day we must build confidence in our institutions here at home.”