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
General
Customs, NMDPRA Strengthen Interagency Efforts Against Fuel Diversion
By Adedapo Adesanya
The Nigeria Customs Service (NCS) and the Nigerian Midstream and Downstream Petroleum Regulatory Authority (NMDPRA) are strengthening their collaboration to combat the diversion of petroleum products intended for domestic use and to safeguard Nigeria’s energy security.
This renewed partnership was highlighted during a meeting between Comptroller General of Customs, Mr Adewale Adeniyi and the NMDPRA Executive Director of Distribution Systems, Storage and Retailing Infrastructure, Mr Ogbugo Ukoha, at Customs House, Maitama, Abuja.
During the engagement, Mr Adeniyi reaffirmed the service’s commitment to strengthening inter-agency cooperation, particularly in safeguarding Nigeria’s domestic energy security and ensuring that petroleum products meant for local consumption are not diverted to neighbouring countries.
He noted that collaboration between both agencies had already produced measurable results, especially through Operation Whirlwind, which he described as a model for intelligence sharing, joint enforcement and coordinated field operations.
He said the Nigeria Customs Service remains fully aligned with ongoing reforms in the petroleum regulatory space and will continue to provide technical input, operational feedback and border management expertise to support the implementation of new guidelines being developed by the NMDPRA.
He commended the Authority for its efforts to harmonise legacy processes with the Petroleum Industry Act, stressing that clear and efficient export point procedures are essential as Nigeria moves from being a net importer to an emerging exporter of petroleum products.
“We welcome every initiative that strengthens energy security and ensures that the gains made in reducing cross border diversion are not reversed. Our shared responsibility is to protect national interest, support legitimate trade and maintain a transparent system that stakeholders can rely on. We will continue to work closely with sister agencies to achieve these outcomes,” he stated.
In his remarks, the Executive Director, Mr Ukoha, said the NMDPRA enjoys a longstanding and productive working relationship with the Nigeria Customs Service, noting that Operation Whirlwind remained the high point of that collaboration.
He explained that both agencies deployed personnel, exchanged intelligence and jointly monitored petroleum products in border corridors, leading to a marked reduction in cross border diversion.
Ukoha said the purpose of the visit was to brief the CGC on newly developed guidelines for designating export points for petroleum products as Nigeria’s refining capacity expands.
He said the NMDPRA is engaging key institutions, including Customs, the Central Bank of Nigeria (CBN), the Federal Ministry of Industry, Trade and Investment, and the Nigerian Navy, to ensure the guidelines reflect operational realities before implementation.
The NMDPRA executive recalled several field operations and strategic engagements with the Customs leadership, including the joint launch of Operation Whirlwind in Yola, where both agencies reinforced their commitment to curbing diversion and securing the domestic supply chain.
He added that while enforcement had played a major role in reducing irregular movements of petroleum products, the removal of fuel subsidy had significantly reduced the economic incentive for cross border smuggling.
According to him, the authority will continue to work closely with the Customs Service to sustain progress and ensure that petroleum exports are properly regulated without exposing the country to energy security risks.
General
Dangote Publishes Details of Farouk Ahmed’s Swiss School Fees for Kids
By Adedapo Adesanya
The president of Dangote Group, Mr Aliko Dangote, has published details alleging extensive foreign education expenses made by the chief executive of the Midstream and Downstream Petroleum Regulatory Authority (NMDPRA), Mr Farouk Ahmed, on four children in a new turn of event between the businessman and regulators.
Speaking on Sunday, the business mogul alleged that Mr Ahmed paid about $5 million for the secondary school education of his four children in Switzerland, and wondered how the government official could afford to pay such amount of money when there are several students in the home state of Mr Ahmed, Sokoto State. He threatened to published more details.
In the latest illustrated claims, Mr Dangote alleged that Mr Ahmed’s children attended secondary schools in Switzerland for about six years each. He listed the schools as Montreux School, Aiglon College, Institut Le Rosey and La Garenne International School. He named the children of Mr Ahmed as Faisal Farouk, Farouk Jr., Ashraf Farouk, and Farhana Farouk.
Mr Dangote alleged that the total cost of secondary education for the four children — covering tuition, upkeep, travel and related expenses exceeded $5 million.
He further claimed that an additional $2 million was spent on university education for the four children over a four-year period.
Specific figures were also cited for 2025, with Mr Dangote alleging that about $210,000 was spent on one child’s Master of Business Administration programme at Harvard University.
The breakdown reportedly includes $150,000 for tuition and $60,000 for accommodation, travel and other incidentals.
The claims have not been independently verified by Business Post at the time of filing this report but Mr Dangote revealed these details in an advertorial in most of the national newspaper on Tuesday.
Also, Mr Ahmed has yet to publicly respond to the allegations.
Mr Dangote earlier called on the authorities to institute a full scale investigation into the activities of the NMDPRA boss, with the outcome made public.
General
Supreme Court Empowers Tinubu to Declare Emergency Rule, Suspend Elected Officials
By Adedapo Adesanya
The Supreme Court has upheld the power of the President to declare a state of emergency in any state to prevent a breakdown of law and order or degeneration into a state of chaos or anarchy.
In a split decision of six-to-one, the apex court held that the President, during a state of emergency, can suspend elected officials, but within a limited period.
In the lead majority judgment, Justice Mohammed Idris held that Section 305 of the Constitution empowers the President to deploy extraordinary measures to restore normalcy where emergency rule is declared.
Justice Mohammed Idris noted Section 305 was not specific on the nature of the extraordinary measures, thereby granting the President the discretion on how to go about it.
The judgment was on the suit filed by Adamawa State and 10 other Peoples Democratic Party-led states challenging the propriety of the state of emergency declared by President Bola Tinubu in Rivers State, during which elected state officials, including Governor Siminalayi Fubara, were suspended for six months.
On March 18, President Tinubu declared a state of emergency in Rivers State following a reported attack on crude oil pipelines; and in the same breath, suspended the sitting governor and his deputy, Mrs Ngozi Odu. He then put in place a sole administrator.
This was challenged at the apex court by some states.
Justice Idris, in the earlier part of the judgment, upheld the preliminary objections raised by the two defendants against the competence of the suit.
In upholding the objections raised by the Attorney General of the Federation (AGF) and the National Assembly (the defendants), Justice Idris held that the plaintiffs (the 11 PDP states) failed to establish any cause of action capable of activating the original jurisdiction of the apex court.
He struck out the suit for want of jurisdiction, proceeded to also determine the case on the merits, and dismissed it.
However, Justice Obande Ogbuinya dissented and held that the case succeeded in part.
Among others, Justice Ogbuinya held that although the President could declare a state of emergency, he cannot use such powers as a tool to suspend elected state officials, including governors, deputy governors, and members of parliament.
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