A Postcolonial Critique of Kadie Kalma v African Minerals Ltd

In this blog, Dr Jane Rooney, Associate Professor in International Law at Durham Law School, provides a post-colonial critique of the narrative produced by Judge Turner in the High Court decision of Kadie Kalma v African Minerals Ltd that dismantles the distance between England and Sierra Leone. This blog is part of the Extractive Industry and Foreign Security Network blog series.

A Postcolonial Critique of Kadie Kalma v African Minerals Ltd

Sierra Leone historian, Joseph Kaifala, narrates Britain’s first colonial encounter with Sierra Leone. Granville Sharp was born in 1735 in Durham. He was a musician, artist, and a key figure in abolishing slavery in England. A Committee for the Relief of the Black Poor was established to decide what should be done with freed slaves once abolition was achieved. Sharp was a lead proponent for repatriating free slaves to Sierra Leone. He wanted them to be self-governed and for them to be the architects of their own destiny in the new Province of Freetown. He invested significant sums of his own money into the repatriation experiment. In the 1780s the first shipment of repatriated slaves and British settlers were sent to Sierra Leone. However, many of the slaves had been born on plantations and did not speak the native language. They were killed by local tribes. Others were ravaged by disease. After successive waves of settlers shipped from the UK and Canada, in 1787, the Chartered company, St George’s Bay Company sent out another shipment. This was later relabelled the Sierra Leone Company. It was equipped with its own security force and governed the Province of Freetown. This was the beginning of the colonisation of Africa.

Today, Kadie Kalma v African Minerals Ltd [2018] EWHC 3506 (QB); Kadie Kalma v African Minerals Ltd [2020] EWCA Civ 1444 provides the UK law on corporate accountability for human rights harms conducted by security forces overseas in the extractive industry. This case concerned a number of tortious claims brought against the UK company, African Minerals Ltd (AML) regarding human rights impacts perpetrated by the Sierra Leone police (SLP) at a mine site in Tonkolili, Sierra Leone. Local workers and residents, some of whom had been displaced by the mine, ‘were variously beaten, shot, gassed, robbed, sexually assaulted, squalidly incarcerated and, in one case [of a young woman], killed.’ The UK High Court and Court of Appeal found that AML did not owe a remedy in tort to the victims of the human rights impacts of the SLP. This judgement is final and was not appealed.

Michael Elliott, Legal and Policy researcher at Rights and Accountability in Development, extensively critiques the narrative provided by Judge Turner in the High Court, an account largely replicated or unchallenged by the Court of Appeal.[1] Elliott draws on criteria of civilisation to critique the judgment. Civilisation was a concept used in the colonial period to justify stealing the resources from other territories of the uncivilised who were not fit to engage in trading practices. The SLP, and the local community who are victims of human rights abuses conducted by the SLP, do not meet the criteria of civilised. Further, it is the responsibility of the Sierra Leone State to protect the local community against its own police force, and not the UK company that exercised de facto control over the SLP in conscripting it to exercise a security function over its mining site. There is no duty of care between the UK company and the local community.

Judge Turner distances England and its culture from that in Sierra Leone and in his application of English law to the facts of the case. The police and the people are different from English people.

As the Sierra Leone Truth and Reconciliation Commission finds, by independence, the British empire had engineered mass mineral extraction and exports. Julian Go argues that policing is a British invention. In the wake of Peterloo - a peaceful gathering of factory workers in Manchester which ended in slaughter by the British state - Robert Peel invented a civilian force to keep its workers in abeyance rather than employ the army against them, which was only traditionally used against enemy aliens. Policing was then used as a technology of empire, establishing the beat: a presence for the protection of the people, not to be used against the people, only against those who threatened the public order and therefore forfeited their freedom from coercion by the state. Erlend Groner Krogstad notes the continuing influence of the British on policing in Sierra Leone after the civil war. There was a root and branch reform of the SLP between 1998 and 2005. British National, Keith Biddle, maintained operational control of the SLP during the reform period. The distance between the British state, policing in Sierra Leone, and mineral extraction in Sierra Leone is not as large as Judge Turner understands.

In Kadie Kalma, one of the instances of police brutality was provoked by protests on the roads that transported the minerals, framed by Judge Turner as an obstruction to vital infrastructure, an act of hooliganism, rather than an act of resistance and a form of democratic participation. As a critique to this narrative it is necessary to read Manu Karuka who provides that:

Railways enabled the circulation of colonial commodities throughout the imperial core, and even more importantly, they made the large-scale export of financial and industrial capital to the colonies a central feature of global capitalism. Infrastructure, in other words, played a police function, materializing not through liberal universalism, but proliferating distinctions and comparison along the lines of community, nation, race, gender, caste, and respectability.

Shehu Tijjani Yusuf writes of Nigerian blacksmiths stealing raw materials from the railroads constructed by the British empire. The British had taken all of their raw materials to build the railroads and stealing them back was a form of resistance.

From a post-colonial perspective the roads function to limit resistance to the appropriation of these goods. The protests on the roads are significant. They demonstrate a profound feeling within the local community of the violence inherent in the construction of those roads.

While it is important to uncover and critique the doctrinal significance of this judgment on UK regulation of UK parent companies, it is also important to recognise how the law replicates an imperialist narrative and to correct the story wherever possible. The post-colonial lens should encourage us to not dismiss peoples’ experiences by othering them. The post-colonial lens can recharacterize obstruction of infrastructure as a legitimate form of resistance which resonates in colonial history.

[1] Michael Elliot, ‘The dominant business and human rights paradigm at work: serving the cause of justice or preserving the global economic order?’ London Review of International Law, forthcoming.