General
ESG Obligations Leading to Risk of Increased Litigation for African Businesses
By Darryl Bernstein
As African businesses begin to recover and build the resilience needed to successfully navigate COVID-19 disruption, a focus on Environmental Social and Governance (ESG) strategies is proving to be essential for long-term success.
In order to stay competitive, organisations based in Africa are engaging meaningfully with ESG to build robust sustainability strategies that meet stakeholder expectations and enable compliance with global and domestic mandatory and voluntary ESG standards and codes.
ESG encompasses a broad range of issues across the spectrum of Environmental (climate change, biodiversity, waste, water and resource use, pollution), Social (human rights, labour practices, HSE, diversity); and Governance (corporate governance, ethics, compliance) matters.
As climate change impacts become clearer and nearer, there is an increasing emphasis on the Environment aspect of ESG. After the pandemic, initiatives in Africa are expected to have a heightened focus on green, low-carbon and sustainable development, via, for example, clean energy production, community care initiatives, green transport and sustainable water projects, wildlife protection programmes and low-carbon development projects.
There is a major role for ESG policies to play in mitigating some of the effects of climate change, through planning and building for hotter temperatures, higher sea levels and more extreme weather conditions, for example.
Organisations are adopting new strategies that address climate change risk and identify the sustainable opportunities that arise from addressing climate concerns. To regulate this, there are likely to be developments from African regulators in the near future that address climate risk disclosure requirements for businesses operating on the continent.
Post-pandemic, the discussions around ESG are also resulting in an added emphasis on the Social aspect – which, among other things, focuses on protecting an organisation’s workers and the wider local populations in which these businesses are based.
Organisations are looking at ways to build better social programmes that are more resilient to future pandemics and ensure good business practice. A focus on issues such as enhancing considerations around the health and safety of employees and communities, implementing diverse and inclusive workplace cultures, and building good management teams that can pull employees together in all kinds of remote, physical workplace and hybrid settings, put companies in a strong position to move forward.
The Governance aspect has also been emphasized by the pandemic, with an increased focus on due diligence around compliance with regards to anti-bribery and corruption, data privacy and cyber security legislation, for example.
Some of the larger African jurisdictions have already implemented mandatory ESG and sustainability reporting frameworks and, going forward, more African regulators are expected to replace current voluntary frameworks with mandatory ones or to adopt new mandatory frameworks. In turn, organisations operating in Africa will seek guidance and more detail from corporate regulators on how they want to see ESG reported and the practices behind the reporting process.
In South Africa, there are many laws that govern ESG factors, including business and financial sector conduct, economic and social empowerment and environmental protection. Voluntary codes such as the King IV Code on corporate governance and the Code for Responsible Investing in South Africa also serve as a guide to businesses on ESG considerations.
Other examples include Kenya, where the Capital Markets Authority introduced Stewardship and Corporate Governance Codes in 2017 and Nigeria, where the Nigerian Code of Corporate Governance was introduced in 2019. Globally, in addition to numerous country-specific laws, there are a plethora of voluntary sustainability-focused codes and standards, including the UN Guiding Principles on Business and the Human Rights and UN Guiding Principles Reporting Framework.
ESG risk management has become a mainstream component of corporate due diligence programmes, and corporate boards are being held accountable for their ESG practices by their shareholders, stakeholders and management teams. Risks for non-compliance with the multitude of global and local laws, voluntary codes and best practices governing ESG factors range from criminal prosecution and hefty fines to reputational risk and business failure as a result of not fulfilling ESG commitments.
Actual and perceived non-compliance with ESG regulations and best practices have engendered activist shareholder protests and action against the parent companies of global groups. A key challenge for businesses is navigating where the laws end, and business strategy and market expectations begin. This is especially the case when navigating the major global issues of, for example, environmental standards and human rights responsibilities. Such issues often lead to activism, litigation and class actions if a business falls short of sustainability standards or appears to be breaking publicly made promises.
Contractual liabilities around ESG must be carefully considered, as contracts that stipulate compliance with certain standards can trigger a breach of contract claim if there is seen to be any violation of the terms. It would be better for businesses to ensure in advance that they can fulfil specific ESG obligations before agreeing to them contractually. Limitations of liability should also be agreed upon to mitigate the risks.
Further, if companies have made public promises regarding their ESG obligations and they are seen to be not fulfilling such obligations, they could be vulnerable to the threat of class actions that are brought by consumers and shareholder activists. Companies should identify what ESG goals can be properly measured, and what goals should be clearly defined as being aspirational and ensure that this is accurately communicated in the public domain. Reputational damage from ESG non-compliance escalates quickly and can be difficult to recover from.
For African organisations, maintaining a long-term sustainability strategy ensures sound financial performance, full compliance with local and global laws and frameworks, and substantially increased resilience in a challenging post-pandemic environment. In the current global environment, ESG is no longer just about doing the right thing, the dial has shifted and having a legally sound and comprehensive approach to ESG considerations is a prerequisite for business success.
Darryl Bernstein is a Partner and Head of the Dispute Resolution Practice at Baker McKenzie in Johannesburg
By Modupe Gbadeyanka
The failure of the Independent National Electoral Commission (INEC) to account for about N55.9 billion earmarked for the purchase of some materials for the 2019 general elections has forced the Socio-Economic Rights and Accountability Project (SERAP) to file a lawsuit against the commission.
In the suit number FHC/ABJ/CS/38/2026 filed last Friday at the Federal High Court in Abuja, SERAP asked the court for an order of mandamus to compel INEC to disclose the names of all contractors paid the sum of money.
It was claimed that the N55.9 billion was meant for the purchase of smart card readers, ballot papers, result sheets and other election materials for the 2019 general elections, which produced the late Mr Muhammadu Buhari as President for a second term in office.
SERAP is relying on the latest annual report published by the Auditor-General on September 9, 2025, to ask for the use of the funds, which is said to be missing or diverted.
The organisation argued that the electoral umpire “must operate without corruption if the commission is to ensure free and fair elections in the country and uphold Nigerians’ right to participation.”
“INEC cannot ensure impartial administration of future elections if these allegations are not satisfactorily addressed, perpetrators including the contractors involved are not prosecuted and the proceeds of corruption are not fully recovered,” a part of the statement issued by the group stated.
“INEC cannot properly carry out its constitutional and statutory responsibilities to conduct free and fair elections in the country if it continues to fail to uphold the basic principles of transparency, accountability and the rule of law.
“These allegations also constitute abuse of public office and show the urgent need by INEC to commit to transparency, accountability, clean governance and the rule of law,” it further declared.
By Adedapo Adesanya
The Ministry of Finance has directed all shipping companies and airlines operating in Nigeria to submit their manifests through the Single Window Project (SWP) as part of efforts to strengthen cargo tracking and transparency.
The submission of shipping manifests before the change of policy was handled exclusively by the Nigeria Customs Service (NCS) for onward cargo processing and port clearance.
However, following a memo from late last year signed by the Minister of Finance and Coordinating Minister of the Economy, Mr Wale Edun, all shipping firms and airlines were directed to integrate with the National Single Window platform to ensure seamless Manifests submission.
“I would like to bring to your attention that His Excellency, President Bola Ahmed Tinubu inaugurated the National Single Window (NSW) Project on the 16th of April 2024.
The NSW Project aims to streamline and automate import and export processes at Nigeria’s entry & exit ports, with the dual goals of enhancing trade facilitation and increasing government revenue.
“By integrating the operations of multiple government agencies involved in trade processes on one platform, the NSW platform will ensure faster clearance of goods and services, improve operational efficiencies at the imports and significantly reduce bureaucratic bottlenecks.
“Key components of the Single Window as defined by the World Trade Organisation (WTO) and World Customs Organisation (WCO) include: (a) a single-entry point i.e. traders, shipping lines, airlines and other stakeholders should submit all required import and export documentation through a single-entry point on a centralized digital platform, and (b) single submission i.e. all documentation should only be submitted once and data only entered once.
“As a result, the NSW Platform will be the single-entry point of submission for all Sea and Air Manifests. Therefore, all shipping lines and airlines are therefore directed to integrate with the NSW Platform to ensure seamless Manifests submission,” parts of the memo read.
The Comptroller-General of the NCS, the chairman of the Nigerian Revenue Service (NRS), the Managing Director of the Nigerian Ports Authority (NPA), the Managing Director of the Federal Airports Authority of Nigeria (FAAN) and the Director General of the Nigerian Maritime Administration and Safety Agency (NIMASA) were copied in the memo.
By Aduragbemi Omiyale
The petition written against the immediate past chief executive of the Midstream Downstream Petroleum Regulatory Authority (NMDPRA), Mr Farouk Ahmed, which was withdrawn from the Independent Corrupt Practices and Other Related Offences Commission (ICPC), has now been taken to the Economic and Financial Crimes Commission (EFCC).
The letter was written by the chairman of Dangote Industries Limited (DIL), Mr Aliko Dangote. It contained allegations of allegations of abuse of office and corrupt enrichment against Mr Ahmed.
The petition led to the resignation of the former NMDPRA chief from office last month.
It was gathered that Mr Dangote, through his legal representative, filed a formal corruption petition against him at the headquarters of the EFCC, with specific plea of prosecuting Mr Ahmed if found culpable.
The businessman said the withdrawal of the petition from the ICPC was a strategic move aimed at accelerating the prosecution process.
In the petition signed by his lead counsel Mr O.J. Onoja (SAN), Mr Dangote noted that, “We make bold to state that the commission is strategically positioned along with sister agencies to prosecute financial crimes and corruption related offences, and upon establishing a prima facie case, the courts do not hesitate to punish offenders. See Lawan v. F.R.N (2024) 12 NWLR (Pt. 1953) 501 and Shema v. F.R.N. (2018) 9 NWLR (Pt.1624)337.”
He further urged the anti-money laundering agency, under the leadership of Mr Olanipekun Olukoyede, “…to investigate the complaint of Abuse of Office and Corruption against Engr. Farouk Ahmed and to accordingly prosecute him if found wanting.”
“The commission’s firm resolve in handling this matter with dispatch is not only imperative and expedient but will also serve as a deterrent to other public officers out there with such corrupt proneness and tendencies,” he added.
Recall that on December 14, 2025, Mr Dangote raised concerns about Mr. Ahmed’s financial dealings, alleging that the former regulator is living far beyond his legitimate means.
According to him, four of Mr Ahmed’s children attended elite secondary schools in Switzerland, incurring costs running into several millions of dollars—an expenditure that raises questions about potential conflicts of interest and the integrity of regulatory oversight in the downstream petroleum industry.
Mr Dangote listed the schools attended by Mr. Ahmed’s children: Faisal Farouk (Montreux School), Farouk Jr. (Aiglon College), Ashraf Farouk (Institut Le Rosey), and Farhana Farouk (La Garenne International School), noting that each child spent six years in these institutions. He estimated annual tuition, travel, and upkeep per child at $200,000, totaling approximately $5 million for their secondary education.
Additionally, he alleged that Mr Ahmed spent another $2 million on tertiary education for the four children, including $210,000 for Faisal’s 2025 Harvard MBA program.
“Nigerians deserve to know the source of these funds, especially when many parents in Mr Ahmed’s home state of Sokoto struggle to pay as little as N10,000 in school fees,” Mr Dangote stated.
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