In our previous article, we recalled the existence and the scope of the United Nations Guiding Principles on Business and Human Rights. Respect for human rights by business enterprises concerns all rights internationally recognized by legal instruments of reference and in accordance with the national laws of states.
Businesses are required to respect all applicable laws and regulations at all times and under all circumstances such as the COVID-19 pandemic, which has had unexpected effects on these entities.
Covid-19 in Burundi
Burundi, like most countries in the world, is going through unprecedented times: a fight against a global pandemic – COVID-19. The business world has found itself in a rather critical position following the sudden and unforeseeable events triggered by the pandemic. Compliance with existing obligations, in a broad sense, by most actors in the business world has proven to be a real challenge.
Unlike most countries in the world, Burundi has not followed any confinement measure since the detection of the first case of COVID-19, on March 31, 2020. Through regular press briefings, the government of Burundi has continued to remind its citizens of the importance for individuals, organizations and businesses to continue to conduct their regular activities, while implementing preventive measures against the spread of the virus in the country such as to regularly wash hands, avoid shaking hands, self-confine when you have been in contact with a person who tested positive for COVID-19, etc. During the celebration of the fifty-eighth (58th) anniversary of Burundi’s independence, the President of the Republic included among his priorities the fight against the COVID-19 pandemic in the face of its persistence by launching a massive “ndakira, sinandura, sinanduza” screening campaign.
It is in this environment that the business world has had to find and keep its benchmarks, in order to honor their commitments (salary payments, payment of suppliers, payment of taxes, etc.).
COVID-19 and business enterprises in Burundi
Business enterprises built around human contact, such as restaurants, hotels, professional services and many others, were initially facing (before the opening of the airport) more palpable consequences regarding the impact of COVID-19 compared to companies in different sectors, for example communication, online financial services, food, etc.
On March 21, 2020, the Ministry of Transport, Public Works, Equipment and Land Use Planning announced that all international commercial flights departing or arriving at Melchior Ndadaye International Airport would be suspended for a period of seven days, with the exception of freight, medical evacuation, humanitarian, and diplomatic flights. The measure went into effect on March 22, 2020 at 9:59 p.m. GMT and has been continuously extended (until November 8, 2020). This measure has obviously led to a significant reduction of income for sectors directly dependent on the comings and goings of people, such as travel agencies, hotels, and the tourism industry in general. Other sectors – such as commission agents (agents who connect tenants and owners, sellers and buyers), producers of handicrafts, aesthetics, etc. – that also rely to a certain extent on the comings and goings of the diaspora and expatriates in the country, were indirectly but seriously affected.
Increased risk of human rights violations
An increase in layoffs of employees by employers was observed following the outbreak of the COVID-19 pandemic. Companies directly affected by it found themselves forced to temporarily terminate large numbers of employees. Many employers are unaware of the strict legal protections that employees enjoy in Burundi, especially when it comes to exercising this option.
When employers are tempted to repeal certain practices, the laws, regulations, decrees, and many others that protect the status of employees are there to call them to order. Meticulous procedures have been established by legal texts ensuring that the rights of employees remain a priority at all times. Deciding not to follow these procedures can be extremely costly for businesses. The adoption of binding legal texts is one of the means at the disposal of the state to ensure that the company respects the United Nations Guiding Principles on Business and Human Rights. When the state, Burundi in this case, adheres to a treaty recognizing the protection of a type of right, the state automatically accepts being legally bound by the provisions of that treaty. This is a huge step towards ensuring the protection of such rights.
Regarding this example of employees’ rights, the General Inspectorate of Labor and Social Security adopts the role of gendarme, that is to say that, it is the authority in charge of ensuring the application of legal provisions, by employers, relating to working conditions and the protection of employees in the exercise of their profession, among others.
In the banking sector, the law no. 1/17 of August 22, 2017 governing banking activities provides an important point relating to the realization of mortgage guarantees. The realization of the mortgage guarantee authorizes the creditor – in this case the bank – to seize the mortgaged property, following a default in payment. This process almost always divides the creditor and the debtor. During the COVID-19 period, the probability of a drop in income of certain debtors is very high in the areas most affected by the pandemic. What will happen to the creditor who must recover what he is owed (with regard to respect for human rights), faced with a good faith debtor but who is unable to fulfill his obligations towards the bank? What are the options available to a creditor in front of a defaulting debtor in bad faith who uses COVID-19 to not repay his credit? What options are available to debtors in the event of repayment difficulties?
Without a doubt, in several cases, the bank’s collateral can be realized, but the contestation of the realization is not excluded either if one refers to current practices. Corporate due diligence and the consultation of experts by debtors are important keys to solving the problem.
The vigilance of the state in its role to guarantee the protection of human rights by enterprises must be absolute, particularly in unusual times such as that of COVID-19.
COVID-19, a significant opportunity?
Entrepreneurs, visionaries and responsive, have been able to respond quickly to growing demands – an immediate consequence of COVID-19. For example, home delivery services in Bujumbura, production of masks, hydro-alcoholic gels, food supplements, etc. have radically increased. These opportunities arose suddenly and generate effort and responsiveness on the part of producers and / or service providers. It is important that the market meets an imminent demand. It is at this precise moment that the role of protector, played by the state, manifests itself differently: have these enterprises fulfilled their obligations? Have they been legally registered with the One Stop Shop for Business Creation, within the framework of the Investment Promotion Agency? Do employees benefit from normal working conditions? Is overtime compensated? Do they benefit from adequate social protection? Special attention is expected from businesses, just like the state. Should the state offer survival alternatives to enterprises? The business that, at the end of the months of June, September and December, knows an income tax instalments on previous year’s earnings is due even though it has not recorded a single income is left on its own. Its options are limited. And the most accessible of the options may turn out to be the one with the most devastating effect on human rights.