From plunder to prosperity: How legal accountability can help manage natural resource wealth in Africa

Aliou Diouf, Francophone Africa Researcher, Business & Human Rights Resource Centre

FARDC - credit: OSISA

At its fifth annual Mary Robinson Speaker Series Event on 31 October in New York, Business & Human Rights Resource Centre gathered a panel to address the issue of “Managing Congo’s resource wealth – from plunder to shared prosperity?”

Keynote: Emmanuel Umpula Nkumba

Emmanuel Umpula Nkumba - credit: Business & Human Rights Resource CentreThe keynote speaker was Emmanuel Umpula Nkumba, Executive Director of African Resources Watch (AFREWATCH), a DRC-based NGO working for respect for human rights by mining companies.  He presented on remedies for victims of abuses involving the extractive industries.  He stressed that natural resource exploitation in DRC has displaced communities without adequate compensation, destroyed ecosystems and polluted people’s lands, air and water.  In some cases, mining companies have been complicit in killings, torture, rape and other serious abuses against local populations by security forces and armed groups.  AFREWATCH’s mission is to assist victims of these abuses in seeking justice, but the avenues for legal remedy in DRC are full of obstacles.  The path is no easier in foreign jurisdictions.  Emmanuel described two cases among those that he followed in his work: The massacres at Kilwa in 2004, and the destruction of the village of Kawama in 2009.

1)    Kilwa massacres

On 14-15 October 2004, a small, unknown rebel group, "Mouvement révolutionnaire pour la libération du Katanga", took control of the mining town of Kilwa.  The Congolese army’s action to dislodge the rebels became a carnage: looting, destruction of homes, rapes, torture, summary executions, etc.  In all, 70 civilians were killed.  Autos, trucks and even an airplane belonging to the Canada-based mining company, Anvil Mining, transported the army’s troops.  In 2007, a military court in Lubumbashi, DRC, brought charges, but was botched, and ended with only minor convictions of three low-level military officers.  The United Nations criticised the proceedings, which did not reach a verdict on the charges of war crimes, and did not reach a verdict against Anvil or its managers.  In November 2010, a coalition of NGOs including Action Contre l’Impunité pour les Droits de l’Homme (ACIDH) and ASADHO, both based in DRC, and the international group Rights and Accountability in Development (RAID), filed a group claim against Anvil Mining before a civil court in Quebec.  However, in January 2012 a court of appeals in Quebec ruled that the province did not have appropriate legislation to allow the courts to hear the case.  The Supreme Court of Canada affirmed the dismissal, crushing the hopes of the victims for justice, and for an examination of what actually happened in those two days in October 2015 – particularly who was directly responsible for the crimes against the people of Kilwa, and who was complicit in supporting the violence.  AFREWATCH is now exploring the possibility of launching a new proceeding against Anvil in Australia. 

2)    The destruction of 500 homes in the village de Kawama

On 24 November 2009, the DRC police destroyed all 500 houses in the village of Kawama, with logistical support including bulldozers from Compagnie Minière du Sud  Katanga (CMSK), which was at the time jointly held by the Group Forrest International and Gécamines, a state-owned enterprise in DRC.  The supposed aim was to clear out artisanal miners working in CMSK’s concession, but the villagers claimed they had nothing to do with artisanal mining.  Over 2500 people were made homeless, lacking any shelter since all the buildings in the village were destroyed.  On 24 December 2009, the local prosecutor opened an inquiry, but it has never resulted in any charges.  The victims of the home demolitions denounce this failure to act as a denial of justice.  Three years later, an NGO coalition filed a case before the National Contact Point in Belgium for the OECD Guidelines for Multinational Enterprises.  The NCP called for mediation, but it failed to yield a settlement between the parties.  The NCP made a few recommeandations to CMSK, but to date, the victims have not obtained any remedy for the violations of their rights.

3)    Challenges

Working on these two cases led Emmanuel to identify numerous obstacles on the path that could lead to justice for victims of abuse.  They fall into two broad categories: challenges in DRC and other "host" countries where multinational companies operate, and challenges relating to the "home" countries where multinationals are headquartered.  Among difficulties in DRC, Emmauel mentioned the limited human, material and financial resources of the judiciary; the lack of legal offered to victims; political interference in court cases; judicial corruption; the unavailability of collective actions and group claims; and the inability of communities to appear in court because they are not recognised as legal persons.  Among home countries, Emmanuel noted the high cost of litigation in developed countries’ courts; ignorance or disregard for the global impacts of the country’s multinationals; lack of political will in host countries, which often prioritise their own economic interests; and fear of competition with companies from emerging economies, which may have weaker regulations.

4)    Recommendations to improve access to justice

Emmanuel recommended:

  • Adoption of an binding international treaty that would require companies to respect human rights;
  • Strengthening national laws in both companies’ home countries and the host countries where they operate;
  • Backing for efforts to improve governance, transparency and taxation regimes for the mining sector;
  • Better support for NGOs and international bodies that work with communities affected by mining; and
  • Better support for people harmed by land grabs, by ensuring they are given new, comparable lands or other means of subsistence and income.

Mary Robinson & other panellists

Mary Robinson - credit: Business & Human Rights Resource CentreAfter Emmanuel’s keynote, Mary Robinson shared her experience in the Great Lakes region, where she served as Special Envoy of the UN Secretary General until last July.  Mrs. Robinson stressed the need to end impunity in DRC.  She also highlighted the widespread use of rape in DRC and insisted on the absolute need to put a full stop to these ignoble acts.

Representatives of the US State Department, the NGO Enough Project and Motorola Solutions all related their work for human rights in DRC, especially in the struggle to stop "conflict minerals" from funding abusive armed groups.

Patrick Alley, co-founder and director of Global Witness, explained his NGO’s enormous work to seek to save Virunga National Park from oil drilling.  Thousands rely on the park’s resources for their livelihoods, and tourism in the park presents the greatest hope for prosperity in the region.  Following international and local actions by Global Witness and its partners, the oil company Soco committed to refrain from oil exploration or drilling within the park, but the ambiguity of Soco’s commitment was strongly criticised by the park’s defenders.  They fear that Soco’s statement leaves the door open for rewriting the park’s boundaries or regulations on activity within it, which could allow natural resource exploitation within its current borders.

Finally, as Francophone Africa Researcher & Representative for Business & Human Rights Resource Centre, I emphasised that the trends that Emmanuel had noted are present in other countries in the region.  Key cases before national and international courts against companies operating in Africa illustrate these trends: 

  • The case against the Guinean agricultural firm Société Guinéenne de Palmier à Huile et d'Hévéa (SOGUIPAH) (2014), accused the company of land grabs.  Advocates for the victims have filed a case before the regional ECOWAS Court of Justice in West Africa, which the Court accepted to hear; the case is on-going.
  • The case against Herakles Farms (2014) also involves alleged land grabs, in this case in Cameroon.  Cameroonian NGOs recently filed a case before the US National Contact Point for the OECD Guidelines against Herakles Farms, seeking an inquiry into alleged corruption in the acquisition of lands for its oil palm project.
  • The case of William Tindwa in DRC (2012), involving the mining company Tenke Fungurume Mining (TFM) and the private security firm Delta Protection was brought before DRC courts.  Mr. Tindwa was detained on the TFM concession by Delta Protection guards.  He allegedly died several days later from injuries caused when the guards beat him.  His family filed a criminal complaint accusing the two companies of being responsible for his death.  The matter is on-going, according to advocates for the family.

Emmanuel and other contacts inform us that this kind of violence by private security firms, including those guarding mining concessions, against local communities occurs regularly in DRC, but often goes unpunished.

Attempts to ensure that companies operating in DRC and across Francophone Africa are held legally accountable for their role in alleged abuses face serious challenges.  Victims find that numerous obstacles limit their access to justice, including both legal and practical hurdles.  Despite these constraints, we are beginning to see cases brought by victims and their lawyers before both their own courts, and in countries where companies are based.  Transparency and good governance of natural resources are imperatives that governments and companies alike are finally beginning to understand, and on occasion even to respect.  Still, much remains to be done.  Local NGOs do their best, but need far greater means to surmount the numerous challenges that remain before companies fully respect human rights and share the fruits of their prosperity with their neighbours in Africa.