Researching the legality of gold commerce

Since the Congo achieved independence in 1960, its gold has financed numerous rebellions and enriched militia leaders, warlords, renegade military officers and corrupt political leaders. In times of war or violent instability, regions that are rich in gold have often been the scene of fierce fighting, while in periods of peace under a legitimate government, these areas have tended to see a surge in crime.
The failure of the Congolese government’s efforts to regularise artisanal gold mining is the subject of the first report in the unique research series commissioned by the Southern Africa Resource Watch (SARW) on the gold industry in the Democratic Republic of Congo (DRC), which was entitled From Conflict Gold to Criminal Gold and was released in 2012.
The second report, The High Cost of Congolese Gold, was published in 2013 and describes the devastating impact of artisanal gold mining on families and communities. 
The key points of these two reports are: 
  • The term conflict mineral can no longer be applied to most gold produced in the DRC because the majority of gold mining regions are no longer under threat of attack or occupation by illegal armed groups. Nevertheless, artisanal and small scale miners still struggle to survive in the face of criminal – and often violent – extortion by various state and government agents, including members of the military, security and intelligence services. 
  • Miners are also forced to pay a second group of coercers, who are members of the so called traditional tribal leadership structures. Elevated to their current positions by Belgian colonial rulers to help with the forced recruitment of tens of thousands of labourers, the Bwami1 have retained the power to collect community taxes in many gold mining regions. 
  • A secondary form of extortion of artisanal gold miners results from monopolised trading networks, which allow traders to underpay the miners’ for their gold and overcharge them for everything they sell. 
  • The combined effects of this extortion by government agents, traditional leaders and trade monopolies have left artisanal gold miners, their families and communities battling for survival, just as they did during the major wars in Congo when the gold mining areas were menaced by militias and warlords. 
  • The systematic extortion of artisanal gold miners imposes a high humanitarian cost. Years of acute hunger, poverty and deprivation have torn husbands and wives apart, deadened parents to their children’ needs, turned sons into violent vagrants and forced daughters to earn a living any way they can. 
This third and last report contains research into all the commercial aspects related to gold extraction and trade in the Congo. Unlike its predecessors, it no longer focuses solely on the woes of the artisanal sector but also details the mining companies, parastatals, trading entities and other countries that are intimately involved in the gold business in eastern DRC – and share responsibility for its current state. 
Incorporating all these issues into one report required an investigation of the historical roots of the current abusive nature of gold extraction and trade in DRC. What emerged was an extremely complex political-economic relationship between the Congolese and some of their neighbours, which has evolved over many decades. 
For example, artisanal mining was illegal until 1981, forcing artisanal gold miners and traders to smuggle gold across the borders. Later, Laurent Désiré Kabila and his rebel friends oversaw the exploitation and export of artisanal for many years, which the government of President Mobutu considered to be illegal. But when Kabila took power, he began promoting the concept that Congo’s natural resources – particularly its gold – were being ‘illegally exploited’ by foreigners. He expressed this view at the UN Security Council in January 2000 when he alleged that his country’s natural resources were being “systematically plundered by the Rwandan, Ugandan and Burundian occupiers” 2 – a claim that has permeated all international discussion on the issue since then and is still believed by many both within Congo and the international community. 
However, the definition of what precisely constitutes ‘illegal exploitation’ has remained murky with many differing interpretations. Anthropologists like Janet McGaffney and Vwakyanakazi Mukohya, who studied eastern Congo’s trade in the 1970s interpreted the ‘illegal’ gold trade as part of the ‘second economy’.
They believed that this alternative view gave a much clearer picture of the real conditions experienced by people compared to the recordings in official government accounts – and also showed how proceeds from this illegal activity helped to fund perfectly legitimate projects and interests.
However, many modern activists take a different position. Some believe that Congolese “villagers are rounded up by armed groups and marched to the mines,”4 situating illegality squarely within crimes against humanity, which include the enslavement of Congolese. On the other hadn, PACT – the American not for profit company that works on behalf of USAID and other Western development agencies – relegates the issue of ‘illegality’ to the context of mere government regulations.
On its website, PACT states that the Congo’s minerals and natural resources “can also attract unregulated exploitation, particularly in the volatile east of the country, rife with political tensions and armed conflicts.”5 PACT’s approach is consistent with many Western states, which have imposed regulations that are intended to ensure greater transparency in the trading chains that deliver ‘conflict minerals’ to their markets.
6 SARW will apply the concept of legality as much as possible in a contemporaneous Congolese legal context, while reflecting the dramatic changes that have taken place in recent decades. For example, until the 1981 liberalization of the mining sector that legalised artisanal mining in the Congo, no legal instrument existed to grant individual mining licenses. Effectively all gold mining, trade and exports were restricted to government approved industrial concessions. Similar constraints existed during the entire colonial period. Artisanal mining and the export of any artisanally mined rawgold were prohibited, and violators were sometimes punished severely. In the current context, there are two drivers behind the criminalisation of gold production and trading: 
  • NationalLawprohibiting the extraction, trading and exportation of gold without proper licensing; and 
  • InternationalLawthrough the imposition of sanctions under UN Security Council resolutio 1533 (2004) and 1596 (2005) and subsequent amendments. These UN resolutions authorise the imposition of a travel ban and targeted financial sanctions against any individual, company or other entity that is a funding or otherwise economically assisting any illegal armed groups – thus, banning trade in gold that is extracted from regions under the control by these groups. The implementation of these sanctions has become somewhat moot in recent years since most of the illegal armed groups have now been disbanded. Instead, the question now is whether the UN sanctions should be imposed on members of the DRC’s military, police and national intelligence organisations, who extort gold miners or assist gold smugglers. As the first SARW report ‘From Conflict Gold to Criminal Gold’ makes clear, these individuals are now the true menace. 
The SARW researchers have wrestled with the complexities of what constitutes legal forms of extraction, trade and exportation. They soon realised that an overly simplistic, one dimensional evaluation of who or what is right and wrong would not serve the Congolese people. For example, defending the ‘traditional right’ of artisanal gold miners may bolster some vague sense of justice, but would ignore: 
  • History–since the Congolese were not gold miners before they were forced into it by the Belgian colonial powers; 
  • Theviewsofmanywomenandgirls–who are opposed to their husbands, sons and brothers mining as the second SARW report proved; 
  • Soundeconomicpolicies–such as the promotion of industrial mining as a readily available tool to meet the country’s needs; 
  • Popertyrights–that are often legally granted to investors interested in commercially exploiting minerals; and 
  • Commonsense–because the history of artisanal mining in Congo – replete with tragedy, conflict, extortion and starvation – does not inspire confidence that the future will be any better
At the same time, these reasons do not invalidate the real interests and rights of artisanal gold miners, which must be addressed immediately, including: 
  • Protection from all forms of extortion, abuse and illegal taxation;
  • Temporary protection of current artisanal gold mining activities and zones until – with the help of the state and other donors – secure and permanent homes, prosperity and sustainable livelihoods are available outside industrial mining zones; 
  • The establishment of fair and secure gold trading conditions to ensure that artisanal miners receive a fair price for their gold; and • Non-mining support to start the transition of artisanal mining families and communities into more sustainable and healthier livelihoods.