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Lokuta eyaka na ascenseur, kasi vérité eyei na escalier mpe ekomi. Lies come up in the elevator; the truth takes the stairs but gets here eventually. - Koffi Olomide

Ésthetique eboma vélo. Aesthetics will kill a bicycle. - Felix Wazekwa

Monday, July 26, 2010

Why legislation on mineral trade is a good thing

There has been some debate of late in the blogosphere about the US legislation on improving supply chain due diligence with regards to Congolese minerals. See here for an interesting debate on Texas in Africa on this topic. The main criticisms can be boiled down to this:
  • Minerals are not the main issue. Land conflict, communal tensions, state weakness and failed demobilization programs are more important. (Texas in Africa, Pole Institute)
  • By tarring the whole mineral trade with the brush of conflict minerals, we could end up in a boycott of a sector that provides livelihoods to up to a million people in the region. (Resource Consulting Services, Dan Fahey)
  • The way advocates like ENOUGH portray the role of minerals in the conflict is simplistic and often wrong. That kind of advocacy can be dangerous. (All of the above sources)
I have been a critic of the sensationalism of the "conflict minerals" lobby in the US. But I do support the bill (as do many other advocacy groups) both on principle and because it could contribute to rendering the Congolese state more accountable. Here are my responses to some of the criticisms.

1. Minerals were not the origin of the conflict, and many other factors are important. However, proceeds from minerals are a key pillar in financing these groups.

I myself have often chided pundits for reducing the conflict to a spectacle of savage Africans raping the country in order to get their hands on minerals. The conflict began more or less in 1996 (although the roots are much deeper) following the collapse of the Zairian state, the arrival of a million Rwandan refugees after the Rwandan genocide, and as local conflicts over land, identity and power got out of control. Minerals did not play a major role in this initial phase.

Minerals have, however, taken on a large role in the local economy and the conflict since then. In 2008, at the height of conflict in North Kivu, official statistics record around $30 million in tin, wolframite and coltan exports from the province. The real level of exports were probably at least two to three times as high due to smuggling, and this is without accounting for extralegal gold trade, which the Congolese senate estimated to be around $1,2 billion a year, mostly from the eastern Congo.

In 2008, I was the head of the UN Group of Expert. It was clear that the FDLR, Congolese army and the CNDP all benefited from this trade to the tune of millions of dollars a year. Talking with members of armed groups, it was very clear that minerals trade was important to the CNDP, FDLR, some Mai-Mai groups and the Congolese army. While some of this has changed since then (ex-CNDP and other Congolese arm units have taken over many mines previously controlled by the FDLR), minerals still play an important role in the conflict economy. If we assume that access to resources and power plays a key role in the Congolese conflict, then we have to assume that the minerals trade is at the core of the conflict.

Having said that, we must be sure not to reduce the conflict to minerals, minerals, minerals. The charcoal trade around Goma alone was estimated to total $30 million a year by the national park, and armed groups benefit from this, as well. Cattle herding plays a key role in the conflict, as the ex-CNDP in particular has deployed its soldiers to protect tens of thousands of cattle, worth $300-$900 each, many of which have crossed the border from Rwanda. And coffee, tea, fuel and timber also play a large role in the local economy. En bref, armed groups can benefit from any profitable trade in the region, not just from minerals.

Of course, the economy is not the only thing driving the conflict; people don't just fight due to greed. Conflict over land tenure has long antagonized local communities, fueled ethnic divisions and driven youths into armed groups. The immigrations of tens of thousands of Rwandan Hutu and Tutsi to Masisi in the 1930-1960 period further poisoned these communal relations and led many to claim that the descendants of these communities are not really Congolese.

Institutional weakness is another important factor in the conflict, as the Congolese army is desperately corrupt and weak, allowing space for small militia groups to form, often buying weapons from the very army that is supposed to get rid of them. Local land conflicts blow out of proportion because the administration cannot deal with them; military abuses go unchecked because the courts do not have the resources and clout to prosecute.

And yet, I do not see how promoting due diligence in the mineral trade will prevent us from addressing these other issues, as well. Instilling accountability in the minerals supply chain can have positive externalities on the Congolese administration in general by helping to promote accountability, strengthen the capacity of the revenue collection agencies and provide an incentive to the government to crack down on the local power barons who benefit from the trade. In order for this to be the case, however, donor efforts need to focus on working with the relevant Congolese state agencies (Ministry of Mines, CEEC, SAESSCAM, Cadastre minier, OFIDA customs agency).

Hence, I agree with Pole Institute and Nick Garrett/Harrison Mitchell of RCS that in the end we need to strengthen the state and make the minerals trade more transparent. But I think that a key way of doing this is by implementing audits that will require Congolese traders and the Congolese state to be more transparent in the way they deal with the minerals trade. Without strong incentives, the trade will continue the way it is.

2. In terms of strategy, promoting supply chain due diligence is smart.

We have been trying for years in the United States and Europe to promote greater involvement in the Congolese conflict. Largely in vain. Donors have thrown money at the conflict and deployed a peacekeeping operation there, but for the most part we just don't care enough.

That has changed with the emphasis on sexual violence and conflict minerals. Of course, some of this focus in unsavory in the way it distorts the facts. Indeed, I think the reason there has been such a backlash against "conflict minerals" advocacy has been due to the way these voices depict the violence. As I have said before, militias in the Congo do not rape women just because they want to get their hands on minerals. Most minerals in cell phones do not come from the eastern Congo. The war did not begin as a conflict over minerals. And so on. I find a lot of this kind of lobbying distasteful - we do not need to tweak the facts to get attention, it's bad enough already, just present the facts.

But, for the first time since the beginning of the conflict, this lobbying has prompted a substantive push by legislators in the US. We now have a meaningful piece of legislation asking the Security and Exchange Commission to regulate the supply chain. This will be difficult to implement, but in the end should do something that I applaud: render companies accountable for the conditions under which their product is produced. As a consumer, I do not want my sneakers to be made by 9 year-olds , I do not want my sweatshirts to be produced in abusive workshops. If we can introduce legislation to promote accountability in the business sector in the eastern Congo, it is a good thing.

Yes, I wish we could have greater engagement in strengthening the Congolese judiciary and police. I wish there could be meaningful land reform and that disputes over farming rights could be settled by expert mediators (UN Habitat is beginning to do this). I wish we could have transparent democratic institutions throughout the country. But none of those issues stand necessarily in contradiction with due diligence in the minerals trade. I can't tell you how often I have been in meetings with officials at the State Department, insisting that they help in security sector reform and in paying attention to the return of Congolese Tutsi refugees. Nothing much came of that. Now that we have a chance to help promote meaningful reform in the minerals trade, I think we should seize the opportunity.

Of course, we should remind our interlocutors in Washington, New York, Kinshasa, Kigali, London, Addis and Paris at every step of the way that we want greater engagement on strengthening state capacity, promoting checks and balances, enhancing judicial capacity and independence and reforming the army.

But this does not stand in contradiction to due diligence in the minerals trade.

14 comments:

texasinafrica said...

So basically, it won't hurt, so why not? I think you're right about that, but the advocates have presented to Congress, the President, and the American public the idea that this is a panacea that will virtually end rape there. We all know that's not true.

You are much more of an expert on this than I am. What happens to these militant groups if they lose the funding from the mines? Will they really they pack up and go home? To me, it seems much more likely that they'll prey on the population to an even greater extent than they already do. How much of the money from the mines goes directly into the hands of soldiers, rather than to the commanders and their (for lack of a better word) investors? It's not like the soldiers won't keep harassing people just because they don't have bullets, right?

Jason Stearns said...

I think the advocacy groups have really shot themselves in the foot by misrepresenting this issue. So yes, I agree with you there.

It will not bring an end to the conflict in the Kivus, but it will make it more attractive for FDLR to go back to Rwanda and for Mai-Mai groups to enter demobilization programs (which also have a ton of problems, as you know).

If constructed properly (it currently isnt) to include abusive units within the Congolese army, the regulations could also provide incentives to improve performance and accountability of the Congolese army.

Finally, if applied correctly (difficult) they could get rid of some of their more flagrant patronage and collusion between businessmen and soldiers, such as ex-CNDP units and businessmen in Kigali and FARDC units and guys in Kinshasa, Bukavu and Goma.

Not easy, but worth a try. It will need to be re-worded, however, when the SEC tackles it.

stealthconflicts said...

I was waiting for your thoughts on this issue. Thank you for covering it at length. Although I know little about the details of the bill, I also agree in principle and hope that it will be a good start that is followed through and strengthened.

That said, I wondered what your thoughts are on the second criticism you mentioned (DRC minerals being collectively labeled as being tainted, and therefore damaging the DRC's economy)? Cabot does plenty of advertising on the simple platform that it does not deal in coltan from the DRC period, not just 'conflict coltan'. I also noted that the price of tantalum is going up...

texasinafrica said...

Thanks, Jason. The patronage thing seems to be one of the huge sticking points on this, and something I'm not sure the advocacy crowd has really picked up on.

Would love to see a post on your optimism that the FDLR could be convinced to go back to Rwanda.

Harrison said...

Hi Jason,
Was looking out for your take on this - Harrison Mitchell here from RCS.

Let me try and add a bit more depth to our position you mention. While we are concerned that the legislation could lead to a de facto ban on the trade, our position goes a bit deeper than that.

Like you we have always said that due diligence would be a good thing for the industry (see our previous reports www.resourceglobal.co.uk).However, we see due diligence (DD) as a means to professionalise and reform the trade rather than a tool to stop conflict actors benefiting. DD can make actors within the supply chain more accountable, to assure sources, develop certification etc, yet, it is no contradiction to say that we are sceptical of DD’s potential effect on conflict dynamics.

Leaving aside the fact that this legislation will largely target already formal actors and the informal trade in minerals (particularly in gold) will continue to thrive, there is a more salient issue of the link between conflict financing and the mineral trade.

Conflict mineral advocates see a DIRECT link between the exploitation of minerals and the perpetuation of the conflict. In contrast, we see the mineral sector as ONE important and wealth generating part of the wider economy. At the heart of our scepticism over the focus on the mineral trade is the fact that in the absence of genuine governance and security, any part of the economy - charcoal, cattle or fuel - can be exploited by a rebel group with guns, as you point out.

Herein lies the rub: should the legislation result in a de facto ban on all trade, then those miners dependent on the trade for their livelihoods will be forced to find other means of generating income – which in turn, will generate wealth that will become a target of those with guns. This is already happening with the charcoal trade and other activities, as the UN has documented. Will the international community then turn to the next commodity that is exploited? Conflict Timber? Charcoal? Conflict Petrol? Conflict cheese from Masisi?

Of course a de facto ban on all trade is unlikely and particularly the informal gold trade is likely to simply further informalise and continue. So instead of further informalising and further criminalising parts of the trade, why not focus on the central problem – that the failure of the state to assert the monopoly of violence has resulted in a proliferation of actors who exploit the good governance void for their own ends. This issue should be at the heart of what we consider to be security sector reform, a critical effort to supplement some of the suggested economic reforms. Unfortunately we hear very little about SSR from the dominant advocacy groups.

One of the other key problems we at RCS have with this debate is that the public is forced into either or dichotomies of the issues, when the realities are far more complex. For example, its very possible for any mineral legally exported from the EDRC to have benefited artisanal miners, local industry, local and national governments AND military groups. Yet, the advocate position only acknowledges the military involvement. Perhaps an absolutist position that minerals should have zero military benefit is fine for well fed observers in London or Washington, but artisanal miners working under the poverty line don’t have that luxury.

The guys without guns are an easy target, and while DD is likely to bring some benefit, we ignore the guys with guns at our peril.

Nkunda said...

Writes Stearns,

"but it will make it more attractive for FDLR to go back to Rwanda and for Mai-Mai groups to enter demobilization programs (which also have a ton of problems, as you know)."

I really think you're oversimplifying the FDLR's struggle. In my view, Laura thinking is more accurate. The FDLR will not lay their arms down, or agree to repatriate, simply because of a legislation on conflict minerals.

For instance, the Hutu resistance in Burundi continued for so many years without the conflict minerals.

A legislation in support for political reform, democracy, dialogue or reconciliation might have more benefits.

Nkunda said...

Oh, I should also add that, as long as the FDLR question remains unresolved, Rwanda will continue to have (genuine) security/political concerns.

Hence, the answer lies in political dialogue. Unfortunately, the current diplomatic initiatives seem to have sidelined the FDLR.This to me, is the primary problem.

Monique said...

I really appreciate the continued dialogue/debate on this issue.

As a new hire with Falling Whistles (Advocacy Director - I run our brand new DC office and am halfway through a 3 month exploratory project that's involved a lot of listening to and learning from voices in Congo as we figure out if/how to engage in advocacy stateside), I see a lot of value in the Pole Institute/Texas in Africa perspective on conflict minerals & legislation.

The nuance certainly has been missing. There are some very good reasons for simplicity in messaging, and there are some very dumb reasons for (and implications of) black & white messaging, as well.

I think the real challenge for an advocacy group that legitimately sees the need for SSR in Congo is figuring out HOW to pursue it. And by that I don't mean "how do we make a video about it" but how do we work to address or rebuild a failed state without legitimizing leaders who may deserve accountability more than capacity?

I'd be very very VERY interested in an assessment of the SSR efforts in Congo of major donors (US, UN, DIFD, etc) from Pole Institute or another think tank that's given years to thinking about these issues. What's worked? What hasn't? Is a paradigm shift needed to make real impact? Are there grassroots efforts in Congo to hold elected & military leaders accountable that the DC advocacy world should be paying attention to?

Maybe that's already been done ...

Judith said...

To pick up on the point made about Cabot’s campaigning for conflict-free minerals, it’s not just Cabot, there are a number of Western mining companies involved in this, as pointed out by the researcher Raf Custers in this article: http://www.intal.be/nl/node/9185

There is for example also Commerce Resources from Canada, about to develop two major tantalum-exploitation sites in British Columbia and Quebec. The anti-conflict mineral lobbyists they hired have allegedly been working closely with the Enough folks. Another self-proclaimed crusader against ‘blood tantalum’ is Australian Talison, which closed its Wodgina mine in 2008 (in part because of falling demand and prices) and has been desperately waiting for tantalum prices to rise ever since. Just as a number of intermediaries such as HC Starck, which has been stuck with important quantities of tantalum the past years due to falling demand.

As they state in a 25 February 2010 press release on the recent reversal of price trends for raw materials (http://www.hcstarck.com/-/home/press/press_releases.html;jsessionid=2752E73693A668B6007FC53B1234A860)

“The tantalum market is currently driven by end industries’ demand for ethically irreproachable material. It has therefore come to a shift in raw material procurement from the Congo regions hit by conflict to other suppliers, which will also lead to price increases.

In line with this trend, H.C. Starck will quickly pass on the increase in raw material prices to the end markets and secure supplies.”

Just to underline that cutting or reducing supplies from the DRC (whatever its domestic impact might be) does serve clear Western corporate interests by raising global market prices. So the aggressive US conflict minerals lobby seems to be dangerous for other reasons than just simplification of the DRC conflict.

Stealth Conflicts said...

Thanks for the follow-up Harrison (Virgil Hawkins at Osaka University here). I certainly see the point about any resource being open for exploitation, meaning that taking conflict minerals out of the equation is not enough. Clearly a number of other approaches need to be strengthened. Perhaps local conflict solving capacity/reconciliation need to added more to the mix (Severine Autesserre makes some good points in her new book).
Thank you also Judith for your thoughts. I believe Talison also gave the inability to compete with tantalum coming from central Africa as one of its key reasons for closing its mine. Does anyone have any idea on what proportion of the world's tantalum supply has been coming from the DRC, or does the smuggling make it impossible to even estimate?

Jason Stearns said...

Thanks for all the comments.

1. Harrison, thanks for this. My reference to RCS was mostly just to point to groups who are afraid of the impact this will have on local communities, so thanks for providing more detail.

Due diligence will not bring an end to the conflict in the Kivus, or force the FDLR to demobilize. As TIA and RCS rightly argue, the Congo needs to strengthen state institutions and make the mineral trade more transparent.

Advocates like myself, ICG, Global Witness, IPIS, Oxfam and, yes, Enough, have long argued for comprehensive security sector reform and support to the judiciary. ICG and myself (used to be one and the same) have also pushed for a holistic approach to the FDLR that would include more flexibility by the Rwandan government and the UN (although not political negotiations).

The problem is that no one ever listened to us. I can't tell you how many briefings I've had with State Dept, FCO, DFID, EU and the AU about these issues. There was not enough of a domestic lobby for them to care. Now, Americans care because there has been intensive lobbying by advocacy groups, who sometimes simplify and bend the truth to pound their message through. I don't like that one bit, and it can lead to bad policy.

This legislation is not bad policy, however, if it is applied correctly. I would like to see the US go one step further and push for large support to reforming the Congolese regulatory bodies in the Kivus, much like RCS if I understand correctly, which would make due diligence feasible. Also, if coupled with investigative bodies like the one we pushed for with CIC (http://www.cic.nyu.edu/peace_ssr/congo.html) even the underground gold trade could be better regulated.

2. Judith - I had also heard that some sources in the industry were supporting the bill for their own self-interested reasons. It doesn't surprise me. However, other large multinationals such as AMC and lobbyists such as Jewelers of America lobby have fought against the bill; some have spent tens of millions in efforts on the Hill. I doubt Enough does more than talk to those sources in the industry, but if you have doubts then we should emphasize that the bill was also supported by Catholic Relief Services, Amnesty International, Global Witness and Human Rights Watch.

texasinafrica said...

Posting this for Dan Fahey:

Jason,
Having just left Bunia yesterday, and having looked at the minerals trade in Butembo/Beni and Bunia over the last month, I am wondering what effect the US legislation will have on the minerals trade. My guess if very little. I think the advocacy has been a colossal waste of time and a terrible misuse of resources (how much did Enough raise, and spend on this
campaign?).
Dan Fahey

friends of congo said...

Jason,

We found this statement of yours intriguing "But, for the first time since the beginning of the conflict, this lobbying has prompted a substantive push by legislators in the US. We now have a meaningful piece of legislation asking the Security and Exchange Commission to regulate the supply chain."

Does this mean that the 2006 Democratic Republic of the Congo Relief, Security, and Democracy Promotion Act (http://www.govtrack.us/congress/bill.xpd?bill=s109-2125) sponsored by then Senator Obama and co-sponsored by Hillary Clinton was not substantive or meaningful? Are there no provisions in the 2006 law that can play a constructive role in advancing peace and stability in the region?

In the context of the 2008 UN Report that you headed, it is fascinating that little or no reference has been made to Section 105 of what is US Law "SEC. 105. WITHHOLDING OF ASSISTANCE.

The Secretary of State is authorized to withhold assistance made available under the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.), other than humanitarian, peacekeeping, and counterterrorism assistance, for a foreign country if the Secretary determines that the government of the foreign country is taking actions to destabilize the Democratic Republic of the Congo."

Even section 107 has not been implemented as the Great Lakes Region does not have a special envoy - SEC. 107. SPECIAL ENVOY FOR THE GREAT LAKES REGION.

Not later than 60 days after the date of the enactment of this Act, the President should appoint a Special Envoy for the Great Lakes Region to help coordinate efforts to resolve the instability and insecurity in Eastern Congo.

Jason Stearns said...

Thanks for that and for reminding us that bills are often not enacted. What I meant to say by substantive is that the 2006 act leaves quite a bit of wiggle room for the executive not to do anything. For example, the bulk of the Act is a list of wishes: We want the policy of the US to be promoting democracy, peacekeeping, human rights, security sector reform, etc. without really specifying what we should do. E.g., we are currently training one battalion of FARDC troops in Kisangani, which qualifies as SSR, but it is a drop in the bucket.

So the fact that we didn't withhold financial support to Rwanda, for example, was probably because the State Dept didn't think they were destabilizing the DRC or that by the time it was obvious they were, that Rwanda had taken actions to look like it was helping rather than undermining Kinshasa's sovereignty.

And the State Dept would probably say that they did nominate a special envoy - Tim Shortly was sent out to the Congo shortly after the Act was passed, although he was a special assistant to the Ass Secretary Frazier rather than a special envoy.

But I'm with you on this: infuriating.

I do this the new bill passed (http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h4173enr.txt.pdf) is much more specific and substantive about what has to be done by the SEC and relevant companies. There are much fewer loopholes.

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