In a context where corporate accountability in general is rare, and where accountability for environmental damages is nearly nonexistent, the recent conviction of TITAN Cement Egypt for causing environmental pollution and for violating the right to health of neighboring residents offers a real cause for celebration.

On 21 March 2018, the Dekheila Appellate Misdemeanor Court found the Egyptian subsidiary of the Greek-headquartered cement company guilty of violating the Environment Law as well as the Egyptian Penal Code, as a result of dangerous emissions released from the factory. The case of TITAN Cement Egypt is one of many cases where the hazardous effects of cement factories in Egypt have been compounded by their coal, in late 2014.

While international standards require a safe buffer between cement factories and residential communities, the TITAN Cement factory is adjacent to the community of Wadi al-Qamar. For years, residents of the community have complained about the negative effects of the cement company, to no avail.

Beyond celebration, the recent judgment offers a chance for reflection on the opportunities and limits of strategic environmental litigation in Egypt and possible lessons for other contexts worldwide.

Perseverance and building regulatory oversight through litigation:

• First and foremost, the case is a story of perseverance and diligence. Strategic litigation against companies is a slow-moving remedy; it often takes years to prepare and try a case all the way to judgment. Defendants use every available tool to dismiss or delay the proceedings. Fact-finding and evidence-building is time-consuming and expensive. And the legal issues are often novel and complex to parse.
• This case shows how the perseverance of some members of the affected community, as well as lawyers and researchers of the Egyptian Initiative for Personal Rights (EIPR), which took the lead on efforts to hold the cement company accountable through various efforts, were effective in bringing the lawsuit to a successful conclusion.
• The criminal complaint was filed in 2015 and passed through many hurdles before it went to court. EIPR’s commission lawyer recounted the different prosecutorial and investigative authorities she had to address, and how each authority was surprised by the novelty of the case. The prosecutor’s office initially shelved the complaint, deciding there was no grounds for a case, before EIPR’s lawyer managed to get the file re-opened. Even then, the charges selected by the prosecutor’s office showed lack of familiarity with the Environment Law and corporate accountability more generally.
• While the criminal case was ongoing, EIPR also worked to change policy by commissioning an administrative case to force the government to ban the use of coal in cement factories, filed another case before the civil courts requesting damages to affected individuals. EIPR alsosubmitted a complaint with the Compliance Advisor Ombudsman (CAO) of the World Bank Group to target the role and responsibility of investors.
• The recent criminal conviction is the first successful litigation against the negative effects of TITAN Cement’s operations. The perseverance of the litigants and the affected community will hopefully encourage other victims of corporate abuse to take legal action. Moreover, the TITAN Cement case suggests that creative litigation of corporate accountability could strengthen the role of regulatory authorities and increase their readiness to address grievances emanating from business operations. While the public prosecutor and other relevant authorities were initially oblivious to the claims against TITAN, if not opposed to it, the perseverance of the claimants and litigants led to the authorities investigating the matter more seriously. A tactic that was initially shunned by authorities because of its novelty may hopefully become more acceptable and understandable.

Experimenting with new tactics and new legal arguments:

The TITAN Cement judgment is a good showcase for the opportunities that arise when NGOs look at underlying human rights concerns from different and fresh angles, and when the right networks and partnerships are identified. Litigation against companies outside of the labour context is not a common practice for NGOs in Egypt, who focus more on state accountability.

At a roundtable discussing the outcome of the TITAN Cement case, EIPR commissioned lawyers recounted the difficulties they faced in shifting gears and putting themselves in the mindset of holding a corporation accountable. These included getting the affected residents to rally behind the case, discovering the proper authorities to address, and identifying potential legal arguments. Because this was a new type of case in Egypt, domestic and international stakeholder outreach was critical. In August 2016, EIPR, Habi Center for Environmental Rights and the Resource Centre organized a workshop where civil society groups could share knowledge legal engagements related to environmental rights. Before and after the workshop, EIPR and the Resource Centre engaged heavily with international civil society actors with experience in environmental litigation, such as the Environmental Defender Law Center (“EDLC”) and the Environmental Law Alliance Worldwide (ELAW”).

This interaction proved useful in addressing some of the most contentious arguments that came up during the process of the litigation. For example:

During the case proceedings, the company argued that it cannot be held liable for the pollution of the neighboring community or for the negative health consequences, since there were other potential causes/culprits, including other factories in the vicinity as well as a nearby highway. The diffusion of responsibility is often used as an argument in environmental litigation. The claimants’ lawyers, however, stressed that the company should be held accountable for the entire damage it caused, since it’s clear that its actions were a substantial cause of the damages, even if there were other contributing factors. This response reflected the legal principle of “joint and several liability”, which is often used by victims of corporate abuse when companies attempt to evade their responsibility by pointing to other wrongdoers.

Another hurdle that came up during the litigation was the apparent contradiction between the company’s official records (e.g. recordings of emissions) and numerous audiovisual recordings by the community. The company argued that since official records show that its emissions are within the permissible bounds under Egypt’s Environment Law, it could not be found guilty.

With the help of the public prosecutor and EIPR’s lawyers, the court used the videos to determine that company emissions must have led to health and environmental damage. In a separate case, the Habi Center has also successfully secured successful attempts a court order compelling other cement companies to produce internal documents that are generally not revealed to the public in Egypt, such as their environmental impact assessment study and details about alleged community consultation. The link between the case litigated by Habi (focusing on access to information) and that litigated by support of EIPR (which had to overcome the lack of access to information) is a further reminder of the very practical benefits of stakeholder cooperation. Moreover, Habi’s case is also a reminder of the interconnectedness of human rights, since an environmental rights case was ultimately centered around right to access information and led to a judicial precedent that may be used in other access to information cases on other rights.

Opportunities arising from the TITAN Cement case:

Complementing other corporate accountability strategies:

Litigation success can be used in tandem with other strategies to achieve both remedy and to change future company behavior, including by reinforcing the importance of early engagement with communities by companies. For instance, the Egyptian subsidiary and the Greek parent company of TITAN Cement responded to several invitations by the Business & Human Rights Resource Centre to comment on allegations of abuse over more than three years. While TITAN’s readiness to respond on several occasions is commendable, the company’s responses failed to tell the whole story, or result in any change in the company’s behavior. For example, in June 2017, the company claimed that a video recorded by one of the residents showing excessive emissions from one of the company’s kilns was “due to a temporary incident”, which was allegedly “detected and brought under control very quickly.” After EIPR demonstrated through video and photo evidence taken by residents that far from being a temporary or isolated incident, there have been at least 14 similar incidents in under 2 years, TITAN declined to further engage. This successful litigation demonstrates to the company (and others) the value in engaging earlier and more seriously with those communicating grievances resulting from its operations.

Using the court to counter a shrinking public space:

In a similar vein, the TITAN Cement case is a good reminder that successful litigation plays a crucial role in environments such as Egypt, where space for public expression of dissent and for civil society has become extremely restrictive. From 2016 until today, Egyptian courts have issued numerous travel bans, asset freeze orders and arrest orders against many of the country’s human rights defenders. The narrowing of public space minimizes the chance for serious interaction between corporate actors and civil society, and may even cause corporations to remain in the dark about violations that they are directly or indirectly involved in. In this context, the formal process of the court room offers one of the few remaining spaces for interaction between companies and those affected by their operations.

Formal litigation of corporate violations of human rights is far from an ideal process, for all the reasons explained above. Nonetheless, at a point in time where most formal and informal grievance mechanisms have become severely limited, litigation provides an important venue, as well as a catalyst for other forms of engagement.

While there is so much to celebrate about this rare win, there is also a need to do so critically, cautiously and with an eye on future developments. The judgment against the Egyptian subsidiary still leaves the Greek parent company without legal consequences for its actions. The judgment itself will likely be appealed and effective enforcement of the judgment may ultimately provide more difficult than securing the judgment in court, as is often the case in strategic litigation, despite the fact that the actual penalty is minimal for a business of this size and may be written off as a normal business expense (2200 USD).

Pressure and advocacy on relevant actors, including the Egyptian subsidiary, the parent company in Greece, and existing and potential investors, would likely help in compelling the company to comply with the court’s decision.

Nevertheless, the successful conviction of a cement company for damages to the environment and to the health of neighboring communities is a rare and inspiring story, with much to learn from and more to build on in global efforts of this kind. The case may become one of the landmarks of rights-based corporate legal accountability in Egypt and the region, hopefully instigating a stronger interest in the responsibility of private sector actors and fostering a more accountable corporate culture.

This article has been writen by: Bahaa Ezzelarab

MENA Researcher & RepresentativeBusiness and Human Rights Resource center