Sierra Leone Court of Appeal to hear Koidu Community’s human rights claims

FOR IMMEDIATE RELEASE

Sierra Leone Court of Appeal to hear Koidu Community’s human rights claims

Freetown, Sierra Leone

Thursday, February 29, 2024

Koidu Community’s human rights claims will be heard by the Sierra Leone Court of Appeal, thanks to a ruling today that struck out preliminary objections filed by the defendant mining company, Koidu Limited, and scheduled the case for hearing on 16th April 2024.  This appeal will determine whether the community plaintiffs can legally take on a multinational diamond mining company for harm to their livelihoods, their health, and their traditional lands.

While today’s ruling is technical, it breathes new life into the Koidu plaintiffs’ case, which was dismissed by the High Court in Makeni on 27th October 2022, on the basis that the plaintiffs were not qualified to press their claims in court.  The dismissal order also ruled that the plaintiffs should have used a non-judicial grievance mechanism before going to court, despite also recognizing that the grievance mechanism did not actually exist.

“The ruling today is a sign of hope, and it has occasioned an opportunity for our clients’ grievances to be heard on the merits,” said Dr. Chernor Mamoud Benedict Jalloh, Esq., the Lead Counsel for the plaintiffs.

“The outcome of this matter sets important precedent on issues like whether rural people in traditional villages are even allowed to go to court to protect their land rights, and whether companies can stop communities from going to court to protect their rights by signing community development agreements that set up a kind of private arbitration system.”

Brief background

Koidu Limited is a diamond mining company that operates in Sierra Leone and is privately owned by BSG Resources Limited (BSGR) through its subsidiary, Octéa Limited. The company is accused of degrading the living conditions of people living near its mining operations and failing to properly relocate them or compensate them for their losses.

Residents who have not been relocated find it increasingly difficult to farm because waste rock and rubble from Koidu Ltd.’s operations have covered much of their farmland. “Koidu Limited has destroyed our lives,” said Mr. Prince Boima, Chairman of the Marginalized Affected Property Owners Association. “We used to farm and live in peace, but now our lands and water sources are poisoned and covered in rubble. Our homes are shaken by explosives every day.”

Residents also report that their health has suffered. Dust from the mining operations often covers the community and causes headaches, difficulty breathing, and a burning sensation in the residents’ eyes. The operations have also contaminated the water, and many residents develop skin rashes and digestive problems they did not previously experience. High stress from living with frequent blasting further causes headaches, high blood pressure, heart palpitations, and respiratory problems in the community.

Despite promising to properly relocate affected community members in advance of expanding its mining operations, Koidu Ltd. has left the people to suffer.  Many community members have neither been relocated, nor compensated for the damage to their properties, health, and livelihoods.  Others have been relocated to a new area, but the conditions of relocation have been incommensurate with what they lost.

The community is supported in its fight for justice by Advocates for Community Alternatives (ACA), a Ghana-based human rights organization, and Network Movement for Justice and Development (NMJD), a Sierra Leonean civil society organization that organizes communities for a more just society in the face of natural resource extraction.

The legal journey thus far

• In April 2019, Koidu resident Aiah Fengai and 73 others filed a class-action lawsuit against Koidu Ltd., five of its parent companies and affiliates, and their Managing Directors, alleging property damage, environmental and health impacts, land and livelihoods loss, and breach of the company’s Community Development Agreement. Before filing, they sought and received permission to serve the parent companies and affiliates in Sierra Leone, even though those entities were formally registered in the British Virgin Islands.
• In August 2019, an association composed of Koidu residents affected by the diamond mine’s operations filed a lawsuit in the ECOWAS Court of Justice against the Republic of Sierra Leone, accusing the state of violating their human rights by violently repressing the 2007 and 2012 protests and allowing the mining company to destroy their livelihoods, health, and natural environment. The Republic of Sierra Leone never responded to the ECOWAS lawsuit.
• En février 2020, Morie Momoh, résidente de Koidu, et plusieurs autres personnes ont déposé un deuxième recours collectif, cette fois devant la Haute Cour de Koidu même. En août 2020, après avoir appris que la société mère d’Octea faisait l’objet d’une procédure de mise en faillite qui avait révélé des efforts généralisés pour dissimuler et dissiper les actifs du Groupe, les plaignants ont demandé des ordonnances de gel des actifs des défendeurs. Cette ordonnance a été accordée à titre provisoire mais a été annulée lorsque le tribunal a rejeté le recours collectif au motif que la Haute Cour de Kono n'était pas un lieu approprié pour intenter une action civile.
• The plaintiffs refiled their class-action suit in the Makeni High Court in October 2020 and again requested freezing orders. The request was briefly granted but then lifted when the defendants claimed that the previous freezing order had cost them over $6 million and threatened to go to court to enforce their right to collect that sum from the indigent plaintiffs.
• In June 2021, the class-action lawsuits and individual lawsuits were consolidated before the High Court in Makeni.  After a series of administrative delays, the first arguments were heard in Makeni in March 2022.
• In October 2022, the High Court upheld the defendants’ jurisdictional objections and dismissed the plaintiffs’ claims, ruling that plaintiffs did not have the legal capacity to file claims relating to customary land rights, to uphold the terms of a Community Benefit Agreement, or to enforce clauses of national legislation that are meant to provide benefits to mining-affected communities.  The Court also ruled that the plaintiffs should have taken their case to a non-judicial grievance committee before coming to court, despite also ruling that the grievance committee had never actually been created.
• In November 2022, the plaintiffs sought leave of the High Court to appeal the dismissal of their claims.  Leave was eventually granted in November 2023.
• On Monday June 19, 2023, in Abuja, Nigeria, the ECOWAS Court of Justice ruled that the community members had not adequately proven their case, despite the extensive testimony and documentation of violence and economic and environmental devastation that they submitted, and the fact that the Sierra Leone government neglected even to mount a defense or to deny the claims.

END

Advocates for Community Alternatives (ACA) – ACA helps West African communities that are threatened by the destructive impacts of extractives-led development to take control of their own futures. ACA works directly with communities to design their own sustainable development plans and advocate to achieve those plans, and it builds and supports networks of lawyers and other professionals that will serve communities in need. ACA is providing strategic legal support to NMJD as part of their participation in the Public Interest Lawyering Network for West Africa (PILIWA), which ACA coordinates.

The Network Movement for Justice and Development (NMJD) is a Sierra Leonean civil society organization that engages in advocacy and strengthens the capacity of civil society organizations to effectively engage women, men, children, communities, government and other actors for the transformation of society. NMJD’s vision is of a just and self-reliant society (Sierra Leone) where women, men, children and communities are conscientized and live in dignity without fear and discrimination, especially on ground of sex, race, faith, socio-economic and political status.

Media Contacts

1. Abu A. Brima, Executive Director, NMDJ – abu.brima@nmjd.org, +232 88 645314
2. Dr. Chernor Mamoud Benedict Jalloh – benedictcmj@gmail.com,  +232 76 901637
3. Daniel Fofanah – danielgfofanah001@gmail.com, +232 76 724066 ACA
4. Jonathan G. Kaufman, Executive Director, ACA – jonathan@advocatesforalternatives.org., +1(617) 645-4069
5. Lalla Touré – lalla@advocatesforalternatives.org, +233 50 985 0018