I. Background
In the Democratic Republic of the Congo (DRC), artisanal mining is legal based on the Revised Mining Code (article 109, paragraph 1) and implementing measures. The same legislation specifies that artisanal mining should take place in artisanal mining zones (ZEA). This means that artisanal mining cannot take place in a zone that is covered by a mining licence (article 109, paragraph 2), unless the licence holder renounces his permit and the cadastral system authority decides to reassign the zone by following the procedure of ZEA.Footnote 1
In the province of Lualaba and the neighbourhoods of Kolwezi, there is no ZEA. Located far from the city, they are neither safe nor viable for artisanal miners. Ore, the material from which a metal or valuable mineral can be profitably extracted, is only found at greater depths, and cannot be extracted easily with a person’s bare hands. Without the means to facilitate surface stripping and scouring, cooperatives and the government cannot ensure that artisanal mining occurs under safe conditions and without human rights risks. Human rights risks include child labour in the mines, inhalation of dust, long working hours of more than 24 hours, and deaths and other physical injuries due to landslides. Almost all the mines located in the neighbourhood of important cities in Lualaba (Kolwezi, Fungurume and Kakanda) belong to industrial mining companies who possess exploration or exploitation licences. This means that these areas cannot be lawfully used for artisanal mining.
Nonetheless, due to the lack of official artisanal mining zones, individuals (often outsiders to local communities) invade mining sites that belong to companies. These intrusions occur with or without the consent of these companies. As in some cases, the intrusions may even be facilitated by security guards who accept bribes. Invasions of private mining sites are made possible by national and local officials, who facilitate the establishment of marketplaces for the sale of minerals, even where there is no ZEA. Officials do this in return for taxes from market sellers.
Based on African Resource Watch’s (Afrewatch’s) work in the Lualaba region, this article examines three main points. First, the article examines the need for general reforms for the improvement of artisanal mining in the DRC. Second, the article describes the specific problems of artisanal mining when it occurs within areas such as Lualaba. Finally, the article offers recommendations for how to ensure that the human rights of artisanal miners are respected in these situations.
II. Improvement of Artisanal Mining in the DRC: the Need for More Regulated ZEAs
Artisanal miners, also known as ‘diggers’, are generally exploited in the DRC. They do not earn wages that represent the fruits of their labour. Generally, they work in private concessions where there is a commodities market that has a monopoly on purchasing. No bags of ore can be taken out to be sold outside the quarry. Instead, in the local marketplace, an official counter sets the weight of the ore, very often using a tampered scale. The official will then determine the quality of the ore, using its own laboratory, and reduce the quality of the humidity. Weight, quality and moisture have a direct influence on the final price. Artisanal miners who try to secretly take out the minerals, once stopped by quarry security, may be subject to serious physical harm and have their products seized from them.Footnote 2
Considering this situation, DRC provincial authorities have committed to cleaning up the artisanal mining sector, which produces between 20 and 30 per cent of the copper and cobalt ores in the DRC.Footnote 3 In 2016, when new provincial leaders came to power in Lualaba, many commitments were made to improve the living conditions of artisanal miners through enhancements in the artisanal sector. This set of reforms should have started by the establishment of viable ZEA and the reorganization of the market to prevent the mistreatment of miners by sellers. Despite this expressed willingness, four years later, no new ZEAs have been created. The market still operates under the same conditions;Footnote 4 or rather, the new ZEAs are not yet operational.Footnote 5
Meanwhile, artisanal miners continue to invade private sites such as de Tenke Fungurume Mining (TFM), METALKOL, SICOMINES, Katanga Copper Company (KCC) and the Générale des Carrières et des Mines (GCM), a state-owned company. These invasions occur as artisanal miners seek ways to survive and earn a livelihood in the absence of more ZEAs. This new context has led to hostilities between miners and mining companies.Footnote 6
Following the fighting between artisanal miners and mining companies in July 2019, Afrewatch, Bread for All and Fastenopfer, three civil society organizations working for the advancement of human rights in the DRC, published a press release expressing their concern surrounding the human rights violations against miners in the province of Lualaba.Footnote 7 In the press release these organizations requested an update on the progress regarding the implementation of reforms, including the creation of ZEA and the reorganization of the market.
III. The Human Rights Impacts of Artisanal Mining and the Example of Lualaba Province
According to information obtained from officials and the Assistance and Supervision Service for Artisanal and Small-scale Mines (SAEMAPE), there are 150,000 diggers in the Province of Lualaba, not counting their direct dependents. The artisanal mining sector is the largest provider of employment. There are also more than 200 cooperatives, of which only 15 are active.Footnote 8 There is no comprehensive list of the industrial mining companies in Lualaba, but some of the largest companies present include Boss Mining, TFM, Mutanda Mining (MUMI), KCC, KAMOA, METALKOL and Companie Minière de Musonoie (COMMUS).
There are two models of artisanal mining in the DRC. The first involves the creation of an artisanal exploitation zone. In Lualaba, there is no such ZEA. Instead, mining occurs on sites where companies hold private mining licenses. In those situations, a second model, artisanal mining is not meant to occur unless the owner has surrendered his licence at the ‘Cadastral mining authority’ (article 79 of the mining code) by following the renunciation procedure. It is the ‘Cadastral mining authority’ who then creates a ZEA.
In situations where a mining site is operated by a company who has received a permit, two situations may arise. Either miners are allowed by the permit holder to work on the site (e.g. the example of Chemaf in Mutoshi), or miners invade the site.
A. The Situation Where Artisanal Miners are Allowed by a Permit Holder to Work on its Site (the case of Chemaf in Mutoshi)
Many companies have the practice of allowing artisanal miners to work on their sites. One example is Chemicals of Africa (Chemaf), which has received praise in the media as a model of good practice.Footnote 9
Chemaf is a subsidiary of the Shalina Group, an Indian company specializing in the manufacture and marketing of pharmaceutical products. The Shalina Group has been present in the DRC since 1981. In addition to the ‘Mine de l’étoile’ and its processing plant, the company has several operating licences in the province of Lualaba; particularly in the Mutoshi mine where it employs artisanal miners. Chemaf’s activity in Mutoshi is part of a partnership between the Trafigura Group (a commodities trading and logistics company), Chemaf (a mining company), COMIAKOL (a cooperative for artisanal and small-scale mining) and Pact (an international non-governmental organization) at the mine in Kolwezi, DRC. The main objective of the partnership is to ensure a safe and secure delivery of cobalt to the market by working with artisanal miners in the Mutoshi concession.Footnote 10
Chemaf has been chosen for illustrative purposes. According to Chemaf, allowing miners to work on its site is a way of helping thousands of jobless people. Chemaf has developed measures to improve the working conditions of miners by ensuring surface stripping and availing equipment. The site has also been fenced to prevent intrusion by children. This is a positive example that can be shared.
However, a close analysis reveals that challenges surrounding the implementation of this model remain. The company is infringing article 109, paragraph 2 of the mining code, which stipulates that artisanal mining cannot take place on a zone covered by an exploitation licence. Furthermore, while working conditions seem to be improved and miners are equipped with proper safety equipment, other human rights concerns remain. For example, miners still face negative business practices.
For example, Chemaf, which is the sole buyer of the relevant minerals, sets the price and the weight. The role of the local cooperative should be to defend the rights of its members, who are diggers, by negotiating the best prices for minerals and preventing the quality and weight of the minerals from being manipulated by the buyer, which is Chemaf. Unfortunately, in practice, the cooperative defends Chemaf and not its members. According to the Organization for the Harmonization of Business Law in Africa (OHADA), a cooperative society should be composed of cooperators who, united by the common bond on the basis of which the society was created, participate effectively and according to cooperative principles in the activities of the said society and receive shares in representation of their contributions.Footnote 11 However, the COMIAKOL cooperative, which works at Mutoshi, is not a true membership collective of the artisanal miners. Several artisanal miners we met say that they do not hold shares in this cooperative.Footnote 12
The Mining Code prohibits artisanal mining from taking place in an area covered by an Exploitation Permit (PE).Footnote 13 Artisanal mining must take place in an Artisanal Exploitation Zone (ZEA). However, it allows the perimeter of a ZEA to be superimposed on a PE or Research Permit (PR), with the express written consent of the holder.Footnote 14 In this case, the latter must relinquish the part on which artisanal exploitation takes place. After this procedure, the State takes back the ownership of the renounced part and allocates it to the cooperatives.
In practice, this principle is not respected. Some companies with PEsFootnote 15 or PRs defraud the law by using artisanal miners without resorting to the renunciation procedure. This is the case of Chemaf at the Mutoshi mine.Footnote 16 They also do so with the complicity of the mining administration. The reason is simple. This method of exploitation does not require a large financial investment and facilitates a quick and easy return on investment.
Chemaf had resorted to this practice in its Etoile mine in Lubumbashi. It had hired the artisanal miners, who had worked for the company for several years with cheap labour. Once the construction of the factory was completed, the miners were sacked. This story is likely to be repeated in Chemaf’s Mutoshi mine in Kolwezi; here, as was the case in Lubumbashi at the Etoile mine, the company is building its factory and the miners expect to be discharged once it is finished.Footnote 17
B. Intrusions
Mining intrusions are the option that miners use the most. The secretary general of Congo’s Ministry of Mines Minister Ikoli, revealed at the Congo’s Mining Indaba Forum held in Kolwezi in September 2018, that the production of artisanal mining constitutes 20 per centFootnote 18 of the entire national production of cobalt and copper. On that occasion, the provincial minister of mines declared that the province earned USD $1,000,000 from artisanal mining.
Unfortunately, all the production derives from mining intrusions, as do the cases involving companies such as TFM, KCC, METALKOL, GCM, SICOMINES, BOSS MINING, etc. Even worse, while knowing the source of stolen ores, the government allows the establishment of commodity marketplaces by Asian companiesFootnote 19 and collects taxes over them. Intrusions often happen with the help of security services at mining sites. Sometimes they occur because a company has a large mining site which it cannot fully secure.
This, in part, explains the recurrence of conflicts between mining companies and artisanal miners. These clashes lead to human rights abuses. Deploying soldiers to clear tens of thousands of illegal informal miners from mining concessions is a new approach by the authorities in the DRC, who have wrestled with the problem for decades. The June 2019 crises involving Glencore’s KCC mineFootnote 20 and China Molybdenum’s TFM mineFootnote 21 are illustrative of the human rights abuses that arise when the military is used to suppress artisanal miners.
For TFM, several thousand miners invaded its concession, stealing its minerals and fuel from the concession in collusion with security guards and drivers. These artisanal miners had been living together with the communities for more than five years in the village of Kafwaya, for the purpose of illicitly exploiting minerals on unexploited zones belonging to TFM.Footnote 22 According to Afrewatch reports, TFM and KCC did not hesitate to resort to use of force by the army.Footnote 23 Both companies state publicly that they did not request intervention by the armed forces.Footnote 24
The Congolese State sent several thousand soldiers from the Second Defense Zone. Unfortunately, by driving out the clandestine miners, the army committed several human rights violations, including the destruction of the houses of the inhabitants of the village of Kafwaya. Since the army was deployed in southeastern Congo, thousands of illegal diggers have been pushed off Glencore’s KCC mine and China Molybdenum’s TFM mine.
Here are examples of some of the human rights abuses that reportedly occurred as a result of the soldiers’ intervention:
While destroying the houses in the village of Kafwaya, the soldiers set fire to a house in which a child under the age of seven, named Gracia, received a third-degree burn.Footnote 25
On 1 August 2019, the soldiers killed two illegal artisanal miners. One of the miners was identified as the late Tshianyi, who the soldiers killed by gunshot. Tshianyi’s friend, the second miner who had not been identified, was crushed by the military jeep committed to secure the TFM mine.Footnote 26
On 25 January 2020, Mr Ilunga Wa Ngoy entered the TFM concession to dig for minerals and was seriously injured in his left leg by live ammunition.Footnote 27
KCC experienced a similar problem, but in this case the situation was very serious because a landslide resulted in several deaths. According to the statement of the Governor of the province of Lualaba on 27 June 2019, miners died in a rockslide accident in the mine of KOV and 36 bodiesFootnote 28 were recovered. On the same day, a communication from the Kolwezi town hall requested the families of the victims to identify corpses at the Mwangeji General Hospital for administrative burial procedures.Footnote 29
IV. Conclusion
As this is the case and as illegal mining leads to conflicts and also to persistent human rights problems, there is a need for further reforms.
Artisanal mining should be abandoned in the long term in favour of small-scale mining. However, due to the current social situation and in the absence of credible alternatives, the government should take the following appropriate measures to improve the working conditions in artisanal mines.
First, the government should withdraw soldiers from mining sites in order to prevent human rights violations such as arrests, arbitrary and illegal detention, hassles, extortions, tortures and clashes. Companies should also assist the government technically and financially in creating viable artisanal mining zones ceding part of their unexploited sites to artisanal miners on the basis of article 79 of the mining code, instead of allowing miners to work on the sites illegally and imposing unilaterally on them the quality, the weight and the price.
Companies unwilling to cede, should exploit their mining sites industrially; apply reforms that were announced to reduce conflicts of interest that involve local officials at all levels; establish rapidly artisanal mining zones that are viable to tackle the concern regarding mining intrusion by artisanal miners, starting with the ZEA nos. 076 and 078; and prohibit the presence of ore markets in places where there is no ZEA. Markets in such places favour illicit exploitation of ore by private companies while continuing to fuel conflicts and diversify the economy of the province in order to avoid dependency on natural resources.
To achieve this, the DRC may draw inspiration from the example of Ghana. According to an expert report from 2016, Ghana has done well in regulating artisanal mining. The country has avoided the use of child labour and has provided the support needed to ensure that artisanal miners receive a fair price for the minerals they sell.Footnote 30 If Ghana achieve this type of reform, so can the DRC. It will depend on the goodwill of the authorities at both the national and local level.
