6 أبريل 2017
Emmanuel Freudenthal

Freelance reporter investigating businesses in Africa

US President Donald Trump has signalled his intention to suspend the world’s first conflict-free minerals law, much to the consternation of advocacy groups and others who argue it is vital for addressing the deadly conflicts in the Democratic Republic of Congo.

A months-long IRIN investigation involving dozens of interviews with insiders unearthed evidence not only that the law has impoverished Congolese communities but also that its well-meaning proponents have obscured this reality and stifled a proper debate, allowing Trump an easier opportunity to quash it.

For several years, leading academics and independent journalists have criticised Section 1502 of the Dodd-Frank Act, bemoaning its negative impacts on Congolese livelihoods and questioning its effectiveness in bringing conflict to an end. IRIN published its own in-depth report in February that showed how a monopoly on conflict-free production in some of Congo’s main mining areas has adversely affected communities.

“There is a consensus [among academics] that the law had a negative effect on livelihoods,” Laura Seay, a leading expert on Congo and conflict-free minerals, told IRIN.

Advocacy groups prioritised “building the norm for responsible sourcing of raw materials from the developing world,” said Seay, assistant professor of government at Colby College in Maine. “[There] is nothing wrong with that, but a lot was dismissed in service of pushing for the norm.”

Despite mounting evidence that Section 1502 has neither been as effective nor as harm-free as desired, the campaigning organisations that were a driving force behind the legislation have barely acknowledged its pitfalls and continue to promote overly simplistic narratives.

Furthermore, instead of addressing the law’s apparent problems, critical voices have been ignored in a bid to defend the legislation at all cost.

Campaign organisations often have to fiercely defend themselves against companies seeking to dodge their responsibilities, but IRIN spoke to several current and former advocacy employees who described knee-jerk opposition to any criticism of Section 1502, even when voiced within their own groups.

“It was just like: ‘another piece of propaganda against our campaign came out’,” said one employee, speaking on condition of anonymity. “We would jump in to [ask]: ‘Who wrote it? Who paid them? And how are we going to break down their arguments?’

“It was automatically ‘defend and counter-attack’... there was a lot of research and a lot of articles that were… temperate and objective. It was something that I would have liked to… talk about. We never actually talked about it.”

Origins of a divisive law

The unrest in Congo has claimed millions of lives, drawing international attention to the eastern part of the country and involving the UN’s largest peacekeeping force for 18 years.

This complex theatre of conflict has been the subject of dozens of books and thousands of articles: Researchers count more than 70 armed groups in eastern Congo. Many use natural resources to finance their wars, so a UN-mandated group of experts has been tasked since 2000 with looking specifically at this issue.

Advocacy organisations such as Human Rights Watch, Global Witness (full disclosure: the author of this report is a former employee), and the Enough Project brought the issue to wider attention.

In 2009, Global Witness argued that: “warring parties have carried out the most horrific human rights abuses… [and] the lure of eastern Congo’s mineral riches is one of the factors spurring them on”. That same year, the Enough Project wrote: “Our insatiable demand for electronics products such as cell phones and laptops is helping fuel waves of sexual violence.”

This analysis, linking the raw materials for mobile phones to conflict and rape in Congo, soon rose to prominence in policy circles.

The advocacy groups “succeeded in increasing the news coverage of the Congolese conflict and in raising the number and amount of donations for aid organisations involved there,” noted Séverine Autesserre, associate professor of political science at Columbia University, in her award-winning 2014 book “Peaceland”. “They forced companies doing business in Congo to consider whether their actions fuelled conflict.”

Armed with an easily grasped depiction of Congo’s woes, advocacy groups enlisted the help of student activists and celebrities. Everyone agrees that minerals shouldn’t finance conflict and nobody wants to be complicit in mass killings.

The solution seemed simple.

The US Congress included Section 1502 in the Dodd-Frank Act, which passed in 2010. It requires listed companies to check whether they might be sourcing minerals from Congo, and then to find out whether their purchases might have indirectly financed armed groups.

Messy rollout and collateral damage

When the law passed, President Joseph Kabila issued a ban on all mineral production in eastern Congo: a move welcomed as a positive first step by both the Enough Project and Global Witness. Overnight, all the artisanal miners in Maniema, North Kivu, and South Kivu provinces were forbidden to work.

Kabila’s ban devastated the livelihoods of the hundreds of thousands of miners. Even after it was lifted six months later, things didn’t improve much.

As a response to Section 1502, major companies stopped buying from Congo. They had no effective processes in place to ensure that the minerals they sourced hadn’t funded conflict, and this couldn’t happen overnight.

Other companies moved to then-Katanga Province, an area effectively presented as a less conflict-prone alternative. Some have come back since to source their minerals from North and South Kivu.

This February, Global Witness belatedly acknowledged that the “market’s response [to the law] affected the livelihoods of the thousands of artisanal miners in eastern Congo”, while stressing that companies should have continued to source from the region.

Katanga, now divided into four provinces, hosts many of the forerunners of the conflict-free supply chains. IRIN revealed in February how one of those first “conflict-free” mines has been violently forcing miners to accept the very low prices imposed upon them. Today, nearly half of the mines validated as “conflict-free” are located in Katanga.

Further north, in the mines of North and South Kivu, control over minerals that enter the clean supply chain exists mostly on paper. Minerals produced in mines controlled by armed groups can find their way either into the supply chains of supposedly conflict-free Congolese mines or smuggled across porous borders into Rwanda or Tanzania. IRIN spoke to several traders who ply these roads on a regular basis.

The obvious solution is to physically seal off the conflict-free mines to any mineral from outside. However, this tends to create monopolies that, in turn, favour lower prices for miners, as IRIN and others have documented.

Varying verdicts

Most actors agree that Section 1502 has had some benefits: There’s certainly a greater awareness that armed groups, in particular the national army, shouldn’t profit from the mining trade. It also forced companies to find out what happens in their supply chains and made some end-users at least think about where such raw materials came from.

The law’s impact on reducing conflict, however, is harder to ascertain and dismissed by some as non-existent.

In one article, Gregory Salter, a former member of the UN group of experts and now a consultant, wrote that the “premise that the mineral trade is the root cause of conflict in the DRC, and that stopping this source of funding to militia or [the Congolese armed forces] will ‘end the conflict’… is rarely (outside the loopier side of NGOdom), if ever, claimed.”

Autesserre wrote that an over-emphasis on “conflict minerals” had come at the cost of neglecting other crucial factors.

“Focusing exclusively on [this] cause of violence… diverted attention from other much-needed policy actions in the field, such as resolving land conflict, promoting intercommunity reconciliation, jump-starting economic development, and fighting corruption.”

However, advocacy groups like the Enough Project, Amnesty International, and Global Witness constantly push the link between minerals and conflict and appear reluctant to genuinely accept and address the law’s shortcomings.

“It seems to me that the preponderance of evidence suggests that people’s livelihoods have been affected: a lot of people have become poorer,” an employee of one advocacy group told IRIN. “And yet, I think a lot of campaigners have difficulty accepting that was the case… there’s been a lack of willingness to look the facts in the face.”

This view was echoed by several employees from other advocacy organisations – all of whom preferred to remain anonymous. Some declined on-the-record interviews out of concern for their job prospects.

One hurdle to a more in-depth understanding of the situation is the quality of some of the research, according to Daniel Fahey, another former member of the UN group of experts on Congo. While he said he had a lot of respect for Global Witness, he was scathing about the Enough Project, saying they “have put out such poor reports, it’s a joke”.

According to one person who worked at Enough, “such a small portion of the people [were] doing the research… and then most of us were creating and beautifying the campaign side”.

Seay understood the desire for the groups to stick to their established positions. “The Enough Project and Global Witness have glossed over a lot of the issues and have, in some cases, been less than forthright,” she said. “And you can understand why, right? If they say that their effort is a failure, that’s going to hurt their funding stream pretty significantly.”

A need to please donors was not mentioned as a reason for intransigence by any employee IRIN spoke to, but one did say: “I think there’s the matter of losing face… that’s a very big thing. And also, that we’re stuck in the middle of a political battle. It’s extremely politicised. And so, I guess there must be a fear that if we changed position that will be seized upon.”

Carina Tertsakian, who worked on Congo at Global Witness prior to the passing of Section 1502, recalled that the impact on livelihoods “did have to be taken into account – it would be wrong to ignore it completely.

“But also, if you then say, ‘let the trade carry on as it is now’, that means that war criminals and mass murderers and rapists are going to continue benefiting from that trade.

“The priority was to stop [armed groups] from having that very easy source of income,” she said. “For us, that was the priority: to break that link.”

Ask the people

What easily gets lost in the debate over Section 1502 is what the Congolese people want, but this is difficult to know with any great certainty.

Several experts IRIN spoke to argued that the mining communities were never properly consulted in the first place and maintained that considerable support for the law now is coming from groups that don’t accurately represent the miners’ interests, in a country devoid of real political representation.

The Enough Project hit back hard on this point, insisting that Congolese individuals and groups have been properly consulted and telling IRIN that “claiming otherwise is to devalue their input and mischaracterise the facts”.

“In open letters, SEC comment periods, opinion pieces, Congressional hearings, and meetings with US policymakers in Congo, Congolese groups and advocates have supported the provision and its improved implementation,” Enough said, pointing to the fact that “111 Congolese civil society organisations have written to the Securities and Exchange Commission over the past two months asking for the Dodd-Frank 1502 law to not be repealed or weakened”.

But Sara Geenen, a lecturer who has researched artisanal mining in Congo for the past decade, told IRIN that many Congolese NGOs “have jumped on conflict minerals since it suddenly became a topical issue.

“There is a lot of money involved and so it really becomes an opportunity for them to provide [for] themselves as experts on the mining sector. What I hear from them is: ‘we have to say what they [the international NGOs] want us to say’.”

Fahey, the former UN expert, took it a step further: “Developing policies in foreign capitals, like Washington and London… that are supposed to cure problems in Congo… without the real involvement of the Congolese themselves in formulating those policies – they are going to fail, or they’re going to have significant side-effects.”

Seay, the academic, felt similarly.

“Who’s accountable for an advocacy campaign that might cause harm?” she asked. “Some of these advocates did not know the situation they were talking about, and they did cause real harm.

“They caused people to not be able to send their kids to school, and to not be able to get medical care for their kids when they were sick. And, essentially, the campaign didn’t really have its intended effects.

“There are no consequences for those advocates, but the Congolese who were harmed by this legislation have to live with that, even as the advocacy world’s attention has moved on to other causes.”

Some defenders of the law suggest it could offer a trade-off between reduced livelihoods today and increased security tomorrow.

“The people who will be affected by that decision should decide on that,” Autesserre told IRIN. “But, of course, they’ve never been consulted.

“I, personally, would compromise my livelihood for a decrease in violence, but, compared to the people who are affected by this legislation, I’m extremely wealthy.”

One indication of the miners’ preference could be that the vast majority of them have moved to gold mining, where armed actors, especially the national army, control most of the mines.

The future

There are signs that advocacy groups working on conflict minerals have learnt some lessons, with more nods to the law’s failings and a greater emphasis on involving Congolese groups in discussions on EU legislation due to enter into force in 2021.

IRIN sent a draft of this article to the organisations it named for their comments. Global Witness described it as “good and fair” and said: “Long live scrutiny. It makes our work better and all of us smarter.” Amnesty preferred not to comment. The Enough Project raised a number of issues and asked for it not to be published.

Conflict-free minerals remain a key piece of all the groups’ efforts in Congo, and despite a host of critical views expressed in academic articles, an open letter, a movie, and books, they often still present the link between conflict and mining in simplistic terms and avoid mentioning Section 1502’s failings.

The Enough Project insisted it “consistently acknowledged gaps in the response to livelihoods impacted by the law”. But IRIN couldn’t find a single publication where the group clearly outlined that Section 1502 had caused a negative impact.

Regardless, the leaked draft executive order suggests Trump plans to suspend the law for two years, citing its detrimental impact on Congolese livelihoods and its financial costs for American businesses.

Greater frankness about problems with the law at an earlier stage, especially if they had been addressed openly, could have seen a different outcome.

Many people, including representatives of large companies, investors, advocacy groups, researchers and Congolese NGOs – even some who are concerned by the law’s shortcomings – have argued that repealing it will not help Congo. But others, like Geenen, see its likely repeal as a positive move.

Trump’s motives are certainly questionable, and the unravelling of this campaign could lead to uncertain and unintended consequences for Congo. As the first piece of legislation requiring companies to proactively look at their supply chain, its failure could also resonate for years to come in the field of corporate responsibility.

And it’s important that lessons are learnt for other fledgling initiatives. Last year, Amnesty International started a campaign targeting the mining of Congo’s cobalt (a mineral not covered by Section 1502) with the slogan: “Is my phone powered by child labour?”

Asked why, Amnesty told IRIN that “children need to be at school and not in the mines” and said: “we’ve made it clear that companies which have profited from their labour can’t just walk away from the problem”.

Child labour is unacceptable, but some children work in those mines to pay for their school fees. Without other livelihood alternatives, merely kicking them out of the pits will not necessarily make them better off, even if does reassure smartphone users that the expensive gadgets in their hands are untainted by Congo’s revolting reality.

This month, a Sky News video went viral, showing young children working in extremely difficult conditions in unspecified cobalt mines in Katanga.

Soon after the Sky News video was aired, Apple, the electronics manufacturer, announced it had stopped sourcing cobalt from Congo’s artisanal mines. What will the impact of Apple’s decision be? On Twitter, an Amnesty International researcher replied: “good question”.

(TOP PHOTO: Joseph looks for minerals 15 meters underground at Tanganyika's Kamoko gold quarry. Emmanuel Freudenthal/IRIN)

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