African Coalition for Corporate Accountability
Working together to protect human rights

The 4th UN Forum on Business and Human Rights took place in Geneva, Switzerland from 16th to 18th November 2015; an initiative of the UN Counsel of Human Rights under the leadership of the Working Group on Business and Human Rights. The organisation Justice Pour Tous attended the event and presented a paper on the respect of the UN Guiding Principles by Extractive Industries.

The issue of business and human rights is a global challenge which States and business can no longer ignore. Business can assist in the realisation of human rights through providing decent employment and a higher standard of living.

While the post 2015 development programme is still being negotiated, there is growing recognition of human rights in sustainable development and the role that business can and should play in overcoming global challenges such as climate change, poverty and inequality.

The Fourth UN Forum in Geneva addressed the following themes: strengthening dialogue and stakeholder participation, identifying effective measuring devices for evaluating progress in the implementation of the UN Guiding Principles, discussions on national action plans for implementing the UN Guiding Principles, exploring access to effective remedies, examining current state and business practices, as well understanding better the meaning of implementing the UN Guiding Principles within specific areas.

Regarding the progress made in the implementation of the UN Guiding Principles on Business and Human Rights since its adoption via select stakeholders, the rights of local communities which are adversely affected by the activities of extractive industries remain side-lined. This issue formed the backbone of the paper which was presented by the Coordinator of the organisation: Justice Pour Tous, Mr Raoul Kitungano, during the Forum. His paper entitled: “Evaluating the implementation of the UN Guiding Principles by Extractive Industries in the DRC” posited that the obligation to protect human rights lies with the State, the responsibility to respect human rights lies with business, and access to remedy are but some of the points on which the paper was centred which sparked interesting debates throughout the Forum.

Based on the context of the DRC, the paper highlighted that the presence of mining entities often takes local communities by surprise; this is indicative that they had not been previously informed or consulted[1] on the possible impacts that such activities could have on their living conditions given that, in the case of the DRC, the land and subsurface belong to the State. In this light, environmental impact assessments and issues of sustainable development planning are not taken as seriously as they should be. Regarding the guarantee of legal security of local communities’ rights, the rights of local communities and not sufficiently guaranteed and protected as compared to those of mining rights holders. Justice Pour Tous argued that these rights do not possess sufficient legal security in the face of mining activity.

The findings of the field research highlighted that the most affected human rights of local communities are those relating to their living conditions which include: the right to information, the right to participation, the right to housing, the right to food, the right to a clean environment (water, air, land…), the right to fair and equal compensation, and the right to access to remedy in instances of abuse and the specific issue of protection in mining activities.

The apparent silence of the Congolese Mining Code and its implementation measures on this pertinent issue has led to a lot of abuse especially in specific areas of relocation of villages, expropriation of local communities’ lands by those involved in mining activities. Extractive companies overlook anthropological aspects when undertaking environmental impact assessments[2] even though this prerequisite is stipulated in the accompanying measures of the Mining Code. It is necessary to note that there is an absence of specific measures for compensation damages that can be taken by riverside communities.

The Mining Code is not clear on the different types of damages undergone by local communities, as it places each of them on equal footing whilst field research indicates that the level of damages vary in terms of expropriation of lands, farms lands, relocating a village, pollution or environmental degradation.

Right to compensation: Justice Pour Tous advocates that article 281 of the mining Code[3] should be revised by indicating that the law on expropriation for public interest[4] should be applicable to all forms of compensation, and for a special procedure defined in a ministerial directive on compensation procedures on removal and relocation of villages and expropriation of fields.

State obligations: Justice Pour Tous underscores that in terms of human rights, the State’s obligations are three-fold: the obligation to respect, protect and implement human rights. These obligations apply to all rights and impose both negative and positive duties on States.

The Prime Minister of the DRC, Augustin MATATA PONYO MAPON, signed a decree[5] which sought to implement a permanent and participatory dialogue between all stakeholders involved in the management of mining, hydrocarbons and forestry sector. In practice, the DRC did not take the necessary measures for a broad consultation to protect local communities against the negative consequences of the removal process. It is for this reason that the CSOs recommended that the Congolese government include Free Prior and Informed Consent (FPIC)[6].

The responsibility of extractive companies to respect human rights: It is said that “business has an obligation to promote, protect, and ensure that human rights in all the areas in which they operate”. In this light, businesses should compel governments to respect human rights. However, as is the case in countries with weak democratic institutions such as the DRC extractive companies are often part and parcel of the problem and incite the State to violate the rights of local communities.

Access to Remedy: The DRC Mining Code provides recourse in judicial proceedings in instances where no amicable agreement can be reached between the holders of land rights and the holders of mining rights. The possibility of collective recourse is not considered in favour of affected communities as is the case in the forestry sector.

Relations between the holders of mining rights[7] and the holders of land rights: Justice Pour Tous is of the opinion that over and above local communities’ collective right on land and forests which they occupy and live off, it is important that this right be recognised in the form of a title deed issued by a local authority.

Congolese Civil Society Organisations involved in the natural resource sector have always highlighted three flaws regarding the right to compensation in the DRC Mining Code: the lack of specification on the types of damages undergone by local communities, the quasi-absence of compensation procedures, along with the inaccessibility and inefficiency of access to remedy.

While principle 31 of the UN Guiding Principles stipulates that non-judicial mechanisms for compensation should be legitimate, accessible, predictable, equitable, transparent, rights compatible, a source of continuous learning, and based on engagement and dialogue; the coordinator for Justice Pour Tous highlighted that local communities in the DRC are unable to claim their rights. It is difficult for them to present their case to judicial authorities for several reasons which include: lack of information, fear of the business and/or the absence of financial means, ignorance of complaint mechanisms and the UN Guiding Principles.

This explains, in part, why Justice Pour Tous accompanies local groups, paralegals and NGOs to negotiate the topic of community rights with extractive companies, but also increases awareness campaigns on community rights especially on economic, social and cultural rights.

During the Geneva Forum, Justice Pour Tous added that all stakeholders (government, mining companies, and people) should be included in the issue of governance of natural resources to equitably influence decisions in the extractive sector where gross violations of community rights occur to the extent where communities find themselves removed and expropriated which, despite the existence of a vast collection of legal tests in the DRC which are meant to govern the natural resource sector, takes place in full view of the public authority.

The revision of the Congolese Mining sector[8] should seek to curb the capitalist and inhumane interests of multinational companies which are classified as predators of natural resources in the DRC. Yet, the recent case of ill-measured political will saw the abandoning of the revision process of the Mining Code by the Congolese government. During the recent Cape Town Mining Indaba in South Africa, The Congolese Minister of Mines stated, on 10th February 2016, that the DRC will be renouncing the revision process of the Mining Code. After four years of work geared towards improving the mining code and rendering it more human, this noteworthy initiative has resulted in failure. The current Mining Code does not guarantee sufficient legal security of the rights of local communities regarding mining activity.

To conclude, the current Mining Code remains silent and is part of the problem of the expropriation of local communities. True political will is, therefore, required for good governance which, to date, is yet to be transformed into action to be effective in respecting the human rights of local communities’  living in areas which have been earmarked for industrial mining activities and likely removals and expropriations.

Raoul KITUNGANO,
Coordinator and researcher
NGO: Justice Pour Tous, DRC
E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.



[1] A Consultation is a process which should imply a simple meeting where company representatives meet with a few community members who are informed of their intentions regarding community development.

[2] Environmental Impact Assessment: involves prior scientific assessment of the potential foreseeable impacts of a given activity on the environment as well as an assessment of the acceptability of its level and mitigation measures allowing them to ensure environmental integrity within the limits of the best available technology on an economically viable basis.

[3] Art. 281 of the Mining Code: Any occupation of the land depriving rights-holders the right to use the land, any change in the land rendering it unfit for farming leads to for the right holder or lessee of mining rights and/or the quarries, at the request of the rights-holders of the land and at their convenience, the obligation to pay a fair compensation corresponding either to the rent or to the value of land during its occupation, plus half.

[4] Law number 77 – 001 of 22 February 1977

[5] Decree Number 14/005 of 19 February 2014 on the creation, organisation, and functioning of a follow-up platform and participative dialogue of the extractive industries sector.

[6] FPIC: is defined as the right of communities to decide on their own priorities concerning the development process in the measure where it has an impact on their life, their beliefs, their institutions and their spiritual well-being and the lands they occupy or use in a manner and to exercise as much as possible control on their own economic, social and cultural development.

[7] Mining rights: Any prerogative to undergo research and/or mining of mineral substances in mines in accordance with the provisions of this Code. The research permit, the mining permit, the use of waste and mining in small mines permit are considered as mining rights.

[8] Revision of the Mining Code: the biggest problem that the Code has not resolved for more than 10 years is the issue of transparency in procedures, transparency in contracts, transparency in the perception and management of taxes and duties, the terms of compensation for communities. The tax regime has not produced the desired results, but was more in favour of the investors or their subcontractors.

 

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