Mukungwe

The mining sites at Mukungwe are an interesting case, for Mukungwe had been chosen as a pilot site for the national certification system. Not much has occurred in that direction because the mine was highly disputed at the time of research. Mukungwe is part of the concession area acquired by the Canadian company Banro.Footnote ⁵ At the time of research, Banro had not been able to start exploration activities. In practice, the mining sites at Mukungwe had been governed by two rival local families who had contested their claims to the gold reserves for generations, referring to their customary rights to the land. During the second Congo War (1998–2003), the family of Kurhenga Muzimu had supported the militia group Mudundu 40, whereas the family of Chunu had formed its own called Matonge. After the war, both families tried to back up their claims to the gold mines by acquiring mining titles from state authorities. Since then, they have been building alliances with influential military commanders, ousting each other in turn (interviews by author; Geenen & Claessens Reference Geenen, Claessens, Reyntjens, Vandeginste and Verpoorten2012).Footnote ⁶

In 2011, the mining site was run by an ‘Administrative Committee’, organised by one family clan and associated miners. While the Committee tried to resemble an official body, with president, vice-president and various sub-committees, its main function was the collection of taxes from all those who undertook economic activities in the mine: miners, the owners of treatment units, gold buyers, shopkeepers, market vendors, bar owners and prostitutes. The revenues were shared with units of the Congolese army, which were stationed in the mine (Miners 2011 int.; Mine managers 2011 int.; Prostitutes 2011 int.).

In addition, the military commanders extracted money from individual pit managers and diggers by force, descending down into the pits: ‘Every month, the soldiers change. The soldiers treat us very badly. … They come to the underground tunnel and ask for money. If you don't have it, they slap you. Even if you pay, they can come back the next day to ask the same amount of money’ (Miners 2011 int.).Footnote ⁷

As at most artisanal mining sites in eastern DRC, in each pit a group of diggers works under the supervision of one or several managers (PDG) (Geenen Reference Geenen, Ansoms and Marysse2011a). The workers tried to organise themselves collectively, together with the PDGs, in committees and co-operatives, not only to represent them, but also to settle disputes among themselves (Miners 2011 int.; Mine managers 2011 int.; Hütz-Adams & Müller Reference Hütz-Adams and Müller2012). In the face of customary authorities who are backed up by military force, such efforts at self-organisation are fraught with difficulties: The two local strongmen Kurhenga Muzimu and Chunu each had created their own cooperative and excluded members of the miners’ cooperative (Miners 2011 int.).

In Mukungwe, both customary and military agents physically controlled the mine, taxed the miners and were thus actively co-governing the mining site. State agents were mostly sidelined, but some state agents like the Administrator of Walungu Territory tried to play a mediating role between Banro, the miners, the customary authorities and military units (Administrative Committee 2011 int.; Miners 2011 int.; Mine managers 2011 int.; Prostitutes 2011 int.).

Nyamurhale

The second mining site described here is the one near the village of Nyamurhale. An investigation team consisting of the mining authorities, Banro and the United Nations Organization Stabilization Mission in the DR Congo (MONUSCO) identified Nyamurhale in late 2011 as one of two mining sites in Walungu Territory (South Kivu) that are not covered by the concession held by Banro (SAESSCAM 2011 int.). Gold gravel is extracted from a hilltop and later crushed, ground and washed at a water source further down the hill.

In 2011, Nyamurhale was not militarised like Mukungwe, but governed by customary authorities. The statement of interview partners in 2011: ‘La colline est pour le Mwami’ (‘The hill belongs to the Mwami’) reflects the local understanding of who has the right to the land (including the underground resources) and the right to administer it. Accordingly, the Mwami or Chef de groupement,Footnote ⁸ gives permission to start a new pit. At the time of research, the Mwami had two representatives at the mining site who collected taxes (Miners 2011 int.; Representatives of Mwami 2011 int.). The military was not stationed in the mine, but, according to miners in Nyamurhale, soldiers from a brigade in the nearby town Burhale came and forced diggers to work several hours a week for them. From the interviews alone the relationship between customary and state authorities did not become clear. The diggers also paid levies to the state mining institutions, which shows that the state authorities had access to the mining site (Miners 2011 int.; Representatives of Mwami 2011 int.).

The miners had formed two committees, one for the pits in the hill (‘Comité de carrièrre’) and one for the treatment centre at the foot of the hill. The committee on the hill stated that it defended the rights of the diggers, resolved conflicts and was the contact point for the (customary) authorities. It was elected in the presence of the Chef de groupement, with a three-year mandate (Miners 2011 int.).

The fact that at the time of research there was no administrative committee like in Mukungwe, but merely two representatives of the customary authorities, shows that the governance by customary authorities was less comprehensive and intrusive than in Mukungwe. However, one can say that the miners' committees formed part of the governance by customary authorities, for they were contact points for the authorities, and the elections were overseen by the Chef de groupement. Arguably, through them, the customary authorities were better able to control the mining site and the miners.

Mukera

The mining sites at Mukera, Fizi Territory, are situated outside the village, as in Nyamurhale. Alluvial gold is washed out of open pits along the river AnguteFootnote ⁹ in rapidly shifting pits and groups of workers. In 2011, various regulatory authorities were present in Mukera: the mining authority (with its own office), a local chef de police (with his own office), the village chief, the Congolese secret service (ANR) and military units. Armed groups were not involved in the active governing of the mining site in 2011. More hidden links between customary authorities and the militia group Mai-Mai Yakutumba appear to have existed nevertheless (Verweijen Reference Verweijen2012: 29). Both the mining authority and the village chief (supposedly representing the Chef de groupement) physically checked on the mining sites to control miners’ registration cards and collect fees that go beyond what is foreseen by law. Sometimes they were accompanied by a local policeman who could lock up those who did not have valid papers or who were not prepared to pay a bribe (Miners 2011 int.; Customary authorities 2011 int.; State mining authorities 2011 int.).

At the time of research, customary and civil state authorities thus actively co-governed the mining sites at Mukera and collaborated closely. Their governance was intrusive, their regime rigid. Mine workers were hardly permitted to talk to the researchers in the presence of the mining authorities and police. In contrast, the military units stationed in Mukera were not directly positioned at the mining sites. They were reported to occasionally erect barriers at the entry points of the mining sites only and to force miners to pay random amounts of ‘duties’. In addition, the mining division reportedly collected fees on behalf of the military (Customary authorities 2011 int.; Miners 2011 int.; State mining authorities 2011 int.).

The mining authority also used forms of miners' self-organisation for governing the mining site. Pit managers and diggers were organised in so-called cells. The cell chiefs were responsible for coordinating the collection of levies by the mining authority. Therefore some miners were very hostile towards the state authorities; even towards a miners' cooperative: ‘The mining [authority] cannot tell the miners anything. … We consider the two [mining authority and cooperative] as thieves' (Miners 2011 int.; State mining authorities 2011 int.).

The mining division also collaborated with unofficial regulatory authorities – the village chief and his entourage – in the distribution of land for mining. It reported itself that, when gold was found on land around the village, it would divide the land into three zones, one of which would belong to the original landowner, one to the lucky finder of the gold and the third to the authorities.Footnote ¹⁰ A mining officer based in a town nearby admitted that it would need a prospection permit to do so, but that ‘because we do not have the documents, we leave them free access’ (Chef de police 2011 int.; Mining authority 2011 int.; cf. Verweijen Reference Verweijen2012). By distributing land in a completely informal way, the local mining authority had incidentally seized control of land titling. It thereby provided the extraction practices with a semblance of legality.

The three cases show that none of the four distinct rule systems formulated by Hesselbein et al. aptly describe how the mining sites were governed. The artisanal mining operations are partially ruled by customary law, and, at the same time, captured by state institutions through the registration and taxation of traders and miners. Taxation here refers to the levying of various fees and not corporate investment taxes in the proper sense. State agents collaborated with unofficial regulators – customary and military – to collect levies they would otherwise not have access to (cf. iTSCi Governance Assessment 2013; IPIS 2014: 17). At the same time, the semblance of legality of the mining activities was kept intact, which confirms Roitman's (Reference Roitman2005) assertion that the pluralisation of regulatory authority does not imply the demise of state sovereignty, but rather that state agents participate in the proliferation of such pluralisation.

‘Débrouillardise’

Most artisanal mining in the DRC operates outside the legal framework of the state. The Congolese mining law only allows large-scale (industrielle) and small-scale (petite mine) mining ventures to acquire exploration and exploitation licences. Artisanal miners are merely allowed to extract minerals in areas that are not due for industrial exploitation and that are officially designated ‘artisanal mining zones’ (Geenen & Claessens Reference Geenen, Claessens, Reyntjens, Vandeginste and Verpoorten2012: 187). None of the handful of declared artisanal mining zones in South Kivu were operational in 2011 and most of the artisanal mining areas are covered by industrial concessions (Kamundala Byemba Reference Kamundala Byemba2012: 14). This way, the Congolese state has effectively rendered most artisanal mining illegal.

The terms ‘informal’ (Geenen Reference Geenen2012: 1) or ‘extralegal’ (Strazzari & Kamphuis Reference Strazzari and Kamphuis2012: 58) are sometimes preferred, for artisanal mining activities are not illegal in themselves. Yet, ‘informality’ would not aptly characterise the mode of governing described above. Following the widespread dichotomies of ‘formal’ vs. ‘informal’ and ‘state’ vs. ‘customary’, informality is usually associated with customary authorities and other non-state actors. However, we observe that those supposedly ‘informal’ artisanal mining sites are co-governed by customary authorities, armed groups or military units and civil state institutions.

This high degree of conjunction between official and unofficial actors in the DRC and elsewhere has elicited a debate on what is (in)formal and (il)legal.Footnote ¹² As an example of similar modes of governing outside the DRC, Janet Roitman (Reference Roitman2005: 166) succinctly notes in her account of transnational unofficial trading networks across the borders of Chad, Cameroon and the Central African Republic:

One might follow Roitman in calling such state practices ‘formalisation’. It makes sense if the term ‘formalisation’ is understood as referring to the practice of performing administrative measures (issuing forms, dividing land plots, etc.), which imply a recognition by the state. Arguably, this state recognition is part and parcel of the term formalisation that is used in policy circles to denote the path towards legalisation, acknowledging that it will be a long way to achieve outright legalisation (cf. Hinton & Levin Reference Hinton and Levin2010: 12). As a consequence, a large part of artisanal mining activities in eastern DRC may no longer be called ‘informal’ but rather ‘formalised’, for state institutions levy taxes on them by issuing miners’ and traders’ cards.

Given the implication of state actors in this ‘informal’ mode of governing, I suggest to call it ‘débrouillardise’. The French term débrouillardise is often associated with the informal economy and the marginalised, a way of getting by – se débrouiller. La débrouille is also used by Congolese people to denote a common survival tactic (Marriage Reference Marriage2013: 2–3). At the same time, the French original contains notions such as ingenuity and resourcefulness, which refer to the creative and inventive spirit that is often needed to cope with the hazards of the informal economy. In that sense, it is related to the concept of ‘bricolage’ as elaborated by Lévi-Strauss – making do with what is at hand (Levi-Strauss Reference Levi-Strauss1966). However, ‘bricolage’ does not fit a concept of governing practices, where no common material output is sought.

‘Débrouillardise’ implies a great deal of complicity and overlap between state and non-state power holders. The exact mode of governing, including the set-up of actors who exert control, differs from mining site to mining site. The mode of governing is thus very flexible.

As there is no formal rule system that guides ‘débrouillardise’, the normative framework only consists of practical knowledge of the actors involved. Local livelihoods and survival are the dominant rationale that drives actors of this mode of governing. Greed or profit-maximisation is only a minor part of the norms, as ‘the majority of those involved in the trade in precious minerals continue to be motivated by coping and survival’ (Larmer et al. Reference Larmer, Laudati and Clark2013: 6). Artisanal miners in South Kivu consider artisanal mining as a way of life and a viable and profitable livelihood, preferable to industrial mining (Geenen et al. Reference Geenen, Fahey and Iraqi Mukotanyi2013: 9, 25–30).

Access to land and (economic proceeds of) mineral resources is not only determined by customary rules and long-term relationships (cf. Geenen Reference Geenen2011b; Geenen & Claessens Reference Geenen and Claessens2013) but also by arbitrary inventions by state and military representatives, which can be seen as an outcome of negotiated settlements (Garrett et al. Reference Garrett, Sergiou and Vlassenroot2009). Bullying and harassment of miners by various kinds of authorities, civil and military, is widespread. Complaints by the general population about these hassles – locally known as tracasseries – are common.

‘Statutory’

The mode of ‘statutory’ refers to legal large-scale exploration and exploitation. The normative framework is that of a national mining economy that feeds into the growth of the national gross domestic product (GDP) and increases state revenues from mining (cf. Bebbington et al. 2008: 901 in Geenen et al. Reference Geenen, Fahey and Iraqi Mukotanyi2013: 8). According to statutory principles, this mode of governing is supposed to be universal and static in its application to different mines in the national territory of the DRC. The underlying developmental vision is that of a mining economy dominated by large-scale mining ventures. It is contained in the Congolese mining code of 2002, which was influenced by the World Bank's favourable treatment of industrial mining (Geenen et al. Reference Geenen, Fahey and Iraqi Mukotanyi2013: 6, 12).

In practice, however, the governance of the specific concession areas only resembles a statutory framework. A number of international mining companies hold exploration concessions in the DRC, but the only larger mining company that currently extracts gold in South Kivu is the Canadian Banro Corporation. It acquired its concessions under dubious circumstances at the outset of the first Congo War and had its concessions (partly) confirmed after the second Congo War in an out-of-court agreement, which does not follow the mining law but the convention approved by the Congolese president (République Démocratique du Congo 2002: Article 340; Geenen Reference Geenen, Ansoms and Marysse2011a). The deal with Banro is not an exception: Between 2010 and 2012, mining deals with the DRC government may have cost the state of the DRC US$1.36 billion in lost revenues through asset under-pricing (Africa Progress Panel 2013: 56).

The fact that the Mining Code allows for extra-legal arrangements between the president and mining companies, reveals yet again the partly informal character of state institutions’ governing practices. In addition, the mining sites are not only governed by state institutions, as statutory law would have it, but also by the mining companies (cf. Hönke Reference Hönke2014) and customary authorities. Banro, for instance, was part of a mixed mission with state institutions in late 2011 that sought to determine which artisanal mining sites in South Kivu were within the perimeters of its concession areas and which were not. The mission had to rely on technical equipment held by Banro (SAESSCAM 2011 int.). In another concession area of Banro around Luvindja in Walungu Territory, customary authorities were crucial in negotiating a deal with Banro on the compensation of artisanal miners and development projects for the community. The same customary representative of the community was co-opted into the provincial assembly through close relations with the Congolese president (Geenen & Hönke Reference Geenen and Hönke2013: 7). Hence, even according to the practices of the ‘statutory’ mode, the state relies on non-state actors to govern the mining sites.

Given the extra-legal arrangements between state and non-state actors and mining companies, one could be inclined to consider these governing practices to be part of the same hybrid political order as the artisanal ‘débrouillardise’. What distinguishes them from one another, are the distinct normative frameworks they are guided by.

‘Conflict-free’

The mode of ‘conflict free’ refers to the legal exploitation and trading of minerals which are free of involvement of non-state armed groups and the military. The process of certification consists of qualification and subsequent certification missions, during which teams of state representatives, BGR, NGOs and economic partners assess the state of governance in each mining site. The explicit rules of the ‘conflict-free’ mode of governing are contained in the national certification system of the DRC, which allows for the implementation of different international minerals tracing initiatives by governments, INGOs and (electronics and minerals processing) industry (IPIS 2012). It is part of a regional certification mechanism of the ICGLR, which defines mining sites as ‘conflict-free’ when they are free from illegal armed group or military involvement and from the worst forms of child labour and human rights abuse (ICGLR & PAC 2012). In the DRC, this definition boiled down to mines in which no armed groups, military, children and women were present (BEST 2011 int.; BGR 2011 int.).

A precondition to being certified as ‘conflict-free’ is the legality of the mining venture (Ministère des Mines 2011b: 31). To achieve legal status, the Congolese government demanded all miners to organise themselves as cooperatives (Ministère des Mines 2011c). The requirement of legality would accommodate the state rule system, but customary and survival forms of rule would not be excluded either, as long as they did not include non-state armed groups or the military.

While industrial mining was certainly not immune to the financing of armed groups in the Congo wars (Geenen et al. Reference Geenen, Fahey and Iraqi Mukotanyi2013: 13–16; Hönke Reference Hönke2014), efforts to establish clean supply chains within the DRC focus on the artisanal mining sector. Industrial companies like Banro do not use intermediates to have their gold smelted and exported and therefore did not seem open in 2011 to take part in ‘conflict-free’ certification efforts (BGR 2011 int.).

How is this normative framework of what constitutes ‘conflict-free’ turned into practical knowledge of Congolese and international stakeholders who coalesce to achieve this kind of governance? We get an idea by examining how the different stakeholders interpret the definition of ‘conflict-free’. The most obvious case to exemplify different interpretations is that of ‘children’ and ‘women’ not allowed to work in the mines. Whereas in the interviews with the author, the BGR referred to international standards that completely forbid the work of children, local NGOs involved in the process referred to local practices of child labour and argued that only dangerous work should be forbidden. Some NGOs insisted that all women should be banned from working in the mines for their own protection,Footnote ¹³ whereas some state representatives made clear this interdiction should only apply to women at risk like pregnant women (BEST 2011 int.; Multi-stakeholder workshop 2011 int.).

As a result, it was very difficult to see through the exact criteria applied during the Congolese certification process for gold in 2011. As the official guideline for certifying gold mining sites (Ministère des Mines 2011a) was very vague, interview partners referred to the guideline for the 3T minerals instead. No ‘common check-list’ for mine site assessments by different tracing initiatives existed (Johnson Reference Johnson2013a: 13).

In June 2013, two mines in eastern DRC were certified as conflict-free by the regional standards of the ICGLR. Eighty-six out of more than 1000 registered sites were considered ‘green’ by October 2014 (EURAC 2014: 12). One of the certified mines, Kalimbi in Nyabibwe, used to be contested between two rival strongmen similarly to Mukungwe (Cuvelier Reference Cuvelier and Hilhorst2013: 140–42; Matthysen & Zaragoza Montejano Reference Matthysen and Zaragoza Montejano2013: 16–21). State institutions forced a compromise between the rival cooperatives claiming the mine, and the Minister of Mines declared the mine legal to allow it to be certified as ‘conflict-free’ (Hütz-Adams & Müller Reference Hütz-Adams and Müller2012: 56).

In line with the variety of stakeholders who champion different tracing systems and interpret the definition of ‘conflict-free’ differently, the implementation of the ‘conflict free’ certification scheme is varied and patchy (cf. Autesserre Reference Autesserre2012; Seay Reference Seay2012; Johnson Reference Johnson2013a). The infrastructure to trace the trading of artisanally mined minerals, in particular, hardly exists. In South Kivu, only two trading centres were built, in Mugogo and Baraka, that were supposed to offer a safe place to market minerals at fairer prices (IPIS 2012: 21): clearly insufficient for the whole of Kivu. At the time of research, a whistle-blowing mechanism was being installed at the regional level of the ICGLR to report non-compliant behaviour. Local Comités de suivis made up of local state institutions and civil society groups now collect information on what is happening in the mines and along the trading chains and report it to state authorities for them to follow up (Global Witness 2013). The difficulties that state authorities have in doing so are shown in an incident in October 2013: After two seizures of smuggled gold in South Kivu, ‘high-ranking officials’ intervened and released the gold traffickers (UN Group of Experts 2014: 38). Asked whether the ‘conflict-free’ certification initiative was known to them, a member of the ‘Administrative Committee’ in Mukungwe replied: ‘I would not want to miss that certificate. I would ask to proceed slowly. People are still ignorant of the law’ and ‘We first need peace. We are following the logic of the state, but the evildoers need to be punished’ (Administrative Committee 2011 int.).