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The long arms of a U.S. law reach Congo

Sabri Ben-Achour Dec 11, 2014

Three hours from the nearest city and 120 feet underground, at the end of a long tunnel just big enough for a person to crawl through, 25-year-old Nami Fusi is listening to his favorite music while digging.

“Here, this is a patch!” he says, shoveling.  Fusi is one of the Democratic Republic of Congo’s estimated 500,000 artisanal miners.

“We advance a meter or two each day,” he says.  He can spend as many as 12 hours down here, pursuing purple seams in the hard orange clay, hoping to see flecks of gold appear on his shovel or spring from his pick. 

This is how a lot of the mining in Congo has been done for the past few decades: by hand.  Ores regarded as the “cellphone elements” – the three T’s: tungsten, tantalum and tin  were mined in much the same way. These ores earned the moniker “conflict minerals” because the profits made from mining them haloed to finance armed groups in Eastern Congo that controlled mines and waged brutally violent campaigns against one another and against civilians. The groups killed nearly a million people by the most conservative estimates, and possibly as many as 6 million.

Many things can shut down a mine like the one worked by Nami Fusi – collapses, toxic gases, and, it turns out, the Dodd-Frank act.

“Which, in itself, I think sounds a bit odd,” notes Aloys Tegera, wryly. Tegera is director of the Pole Institute, a think tank based in the Congo in Goma.  “There was this strong American lobby, they wanted to slot into this American internal act, something concerning Congo.” 

Within the 2,300 pages of Dodd-Frank is one small section that requires companies that buy minerals from Congo to certify whether those minerals are financing armed groups.  The idea was to help end the atrocities that armed groups were committing.  Outside of Capitol Hill, pressure to do something came in the form of campaigns on campuses, Facebook and YouTube to hold cellphone companies and computer makers accountable.

“But they didn’t really foresee the reaction, the local reaction, how it was going to work,” says Tegera, referring to lawmakers.

Reaction was swift and dramatic.  In 2010, many companies started looking elsewhere for minerals.  The government of the DRC, finally waking up to the issue of conflict minerals, unilaterally suspended all mining operations.  Even when the suspension was eventually lifted six months later, many international companies realized they couldn’t certify anything about Congolese minerals.  Not  when the supply was dominated by long chains of middlemen and thousands of workaday people – men and women with picks and hammers.  So companies stopped buying.

“They didn’t buy, these past few years, they don’t buy anymore,” says Gaspard Kashafali, an unemployed miner wearily standing on the side of a street in Bukavu.  “I can’t do this job anymore, and up until now I have nothing.  I earn nothing.  I don’t work.”  Before Kashafali was a miner, he was a guerrilla fighter in the Mai Mai, one of the Congo’s dozens of armed groups. 

“Artisanal miners were all of a sudden unemployed,” says Tegera.  It was a defacto embargo.

There were broader ripple effects beyond miners, says Tegera.   “Government revenue dropped, and we had for instance local traders who would sell spare parts, food, beer, and these people also couldn’t sell.” 

Tegera and others allege that the loss of jobs pushed erstwhile guerrilla fighters like Kashafali back to the banditry trade, ironically increasing insecurity – contrary to the aims of the efforts to reign in conflict minerals.

The initial suspension, which closed down legitimate mining operations, also allowed rebel groups out of the reach of government, like the National Conference for the Defence of the People, to monopolize the mineral trade in the short term as they smuggled their materials into Rwanda or Uganda. 

Unlike the artisanal miners, “industrial mining operations were not hit,” says Tibere Kajemba, program director at Observatoire Gouvernance et Paix, a human rights organization.  “They have a closed supply chain, they can show that their minerals are conflict free.”


 Not unintended

Toby Whitney was legislative director for Rep. Jim McDermott, R-Wash., and the lead drafter of the Dodd-Frank section on conflict minerals. Whitney bristles at the notion that drafters were’t aware of the consequences.

 “When you’re going to break a black market, and provide some chance for peace and prosperity in the region, there’s going to be some dislocation,” he says.  “And it was worth some amount of dislocation to stop funding the killing of a thousand people a day.” 

 “This behavior has been going on for 20 years, funding a huge war, and we are saying you have to care about this, be transparent at a minimum,” Whitney says.   

 Tegera and others complain that if the people behind Dodd-Frank knew in advance what would happen to the miners, they failed to come up with a plan to support them. 


 Attempts to cope

Four years into the disruption to one of Congo’s most important industries, numerous efforts have arisen to help artisanal miners trace the origins of their products to show it is “clean.” That’s what designers of the law hoped for.  

 The human-rights organization that Kajemba leads is helping the DRC government monitor mines for the presence of armed groups. They also monitor for adherence to other standards banning child labor and pregnant women or women carrying small children on their backs from working in the mines. The organization has helped put together a classification system of green sites (conflict free and up to standards), yellow sites (meets some standards but not others), and red sites (armed groups are demonstrably present).  

There are also programs that bag and tag ore mined by artisanal workers, offering a seal of sorts that marks the minerals as conflict free.

“These programs exist and have been ratcheted up, so there’s an improvement,” says Jason Stearns, senior fellow at NYU’s Center on International Cooperation. “But we are at such a low level  fewer than a dozen areas out of hundreds, and its very cumbersome infrastructure.”

These programs have almost certainly not been able to absorb all the displaced miners.  Nor are all of these classification systems  internationally recognized, which means they are not sufficient for a company to meet the requirements of Dodd-Frank.

A consequence of the traceability schemes has been the creation of monopoly dynamics, says Laura Seay, an assistant professor at Colby College in Maine. Her research focuses on U.S. foreign-policy effects in the African Great Lakes region.

“In the places where there is traceability, there’s only one buyer. That buyer gets to set the price. There are miners who think they are being cheated and are probably right, in terms of what they’re getting for the minerals,” Seay says.  “And so what we’re seeing is that it’s a relatively tiny number of miners who are benefiting from the new traceability schemes and the vast majority are still excluded.”


Bitter medicine

One of the U.S. groups largely behind the Dodd-Frank section on conflict minerals is the Enough Project, a Washington, D.C., nonprofit with a mission to end genocide and crimes against humanity. For proponents like Fidel Bafilamba, the Enough Project’s country director for DRC, the law is like Quinine: bitter but necessary. He admits that many miners suffered under the rule, but he argues that the people working in mines under the control of armed groups suffered without the rule.  

When armed groups and militaries took over, “artisanal mining became synonymous [with] tragedy, malediction to the local communities.”  He compares the condition of some mining communities controlled by armed groups to urban areas like Goma, “despite the nice buildings coming up in Goma, these communities still have nothing.”   

 And despite the hardship, the law worked, Bafilamba says.

“Five years back, most of the mines  especially three T mines  were under the control of armed militias.  Today, 67 percent of mines are conflict-free,” he says. 

The International Peace Information Service, a Belgium-based independent research institute promoting peace and development in Sub-Saharan Africa, backs up this claim.  However only a third of gold mines are conflict-free. 


 Silver linings and gold chains

There is no reliable data on exactly how many miners were put out of work in the long run, and to what extent their financial hardship persists. A World Bank-funded report suggests one possibility:  It estimates four out of five artisanal miners in the DRC are now working in gold, a largely unregulated and untraced sector. 

“There’s been a large migration from the three T’s  tantalum, tin, tungsten  to gold, which is by far the largest mining trade or sector in the eastern Congolese economy,” NYU’s Stearns says. “So that has buffered and cushioned the impact of Dodd Frank.” 

Gold has also offered armed groups an escape route.  

Gold has a high intrinsic value, and it doesn’t need to be smelted or refined before attaining that value.  It is also easily smuggled, easily sold, and many of the mines are in areas not fully controlled by the government.   Now that cellphone minerals are less profitable, it is the alternative of choice for both miners and militants.

“You definitely have more armed groups benefiting from gold.  That is shown in data we have gathered this year,” says Anna Bulzomi, an analyst with the International Peace Information Service.  “It is very challenging to say that gold is sourced responsibly right now.” 

Two-thirds of gold mines in the Congo operate under some kind of armed group according to the International Peace Information Service.   

“The main hubs for gold are in places that so far have not been particularly active in the global conversation on conflict minerals,” says Bulzomi.  “For instance, a lot of gold from the [African] Great Lakes region ends up in Dubai where the level of commitment is not as high as the U.S. or EU or players with large roles in other supply chains,” she says. 

A pilot project at the Nyamorale gold mine where Nami Fusi works is seeking to change this, but it is one out of more than 600 sites.  Other sites are in isolated or rebel-controlled areas where conflict free certification programs are not possible, but from which smuggling certainly is. 


 Competing narratives

 Dodd-Frank’s harshest critics say that the law missed the point.  “It underestimated or overestimated the government’s ability to provide law and order,” says Tegera.  The underlying factor behind Eastern Congo’s lawlessness and illicit mineral trading is not mineral wealth, it is a collapsed, feckless government.  To address the conflict international organizations and governments should strengthen the government’s ability to do what governments do: provide services and stability, according to Tegera with the Goma-based think tank.

For those like Bafilemba, who favor Dodd-Frank’s approach of taking action at the economic level, the DRC government’s fecklessness is precisely the reason not to wage reform through said government. “They are not interested in stability, or basic services,” he says. For Bafilemba – who views the current Congolese government as a puppet of neighboring Rwanda and the United States, bent on extracting Congo’s mineral wealth for personal or foreign gain – working to support the government’s capacity before reforming it would be counterproductive. 


“We won’t know whether [Dodd-Frank] has been a success or failure for another five or six years,”  says Stearns, the NYU fellow.  He says the law could have used “more foresight and preparation … but the baby shouldn’t be thrown out with the bathwater,” he says.  “Now that it’s in place we have to work with it and improve it.”  Stearns says the current standard put in place by the law requires too high a burden of proof to certify that a mineral is conflict free. “Supply chains are so confused through so many intermediaries that it’s impossible to verify” to that standard, which he says should be lowered.

 “No, it’s the standard,” says Whitney, one of the law’s drafters.  “If you bring a toy into this country and it’s painted, you need to know whether it was made with lead paint or slave labor.  You’re not allowed to say ‘I’m bringing something in this country with lead paint in it and it’s too complicated for me to figure out, so sorry people got poisoned.'”  


Of minerals and men

Regardless of the government’s utility and role in the minerals sector, Congo’s minerals are not the primary driver motivating the armed groups operating here. 

“According to the U.N., only 8 percent of conflicts are over resource conflicts – fighting over control of a mine to have access to particular mineral resources, but that means the other 92 percent of conflicts are not about minerals,” Seay says. It is about identity, belonging, ethnicity and money.

In the past, many of those conflicts were funded by minerals but, Seay says, “in a wartime economy, everything looks like a source of revenue.”

“If one source goes away, that doesn’t have an effect on the violence because the armed groups continue to finance their activities through a wide variety of means,” she says. 

Groups have funded themselves by trading charcoal, timber, marijuana, even by poaching  animals.  “The M23 group that existed in 2012 and 2013, they were bringing in 200, 300, $400,000 a month just by informally taxing trade at a border post.”

The conflict-mineral cellphone narrative “was very deliberately chosen because it is simple, anyone can understand it, it’s relatable  everyone has a mobile phone. So if you say your phone has blood in it fueling violence, that gives everyone an immediate and personal connection.  It’s very clever.”

The problem, says Seay, is that despite “the good intentions of mobilizing people around the issue when you have a simple narrative,  it’s reductionist and leaves out important dimensions of the crisis.”   

That is one thing that both critics and supporters of Dodd-Frank can agree on: The roots of the conflict are deep and wide, and no simple stroke of a pen by an outside power can solve that problem alone. 

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