Guest post: Mining transparency in the Congo––Cautious optimism despite strong headwinds

This is a guest blog by Elisabeth Caesens, DRC Mining Governance Project Coordinator for the Carter Center. The views expressed here are her own and do not represent those of the Carter Center. 

A few months ago, the DRC got suspended from the Extractive Industries Transparency Initiative. Congo is commonly perceived as a basket case for natural resource governance; any outsider might have nodded and thought, “Surprise, surprise.” What the Government failed to convey was that suspension actually represented a positive decision. The DRC’s failure to comply with some of the EITI rules could have lead to its exclusion from the process altogether, a development that would have benefited no one but secrecy adepts. Instead, the DRC now gets a second chance to address some of the flaws of its previous reporting efforts by March 2014 - in particular to ensure data certification is rigorous and the report is comprehensive.

Congo has been given a second chance for a reason. Since early 2012, a few key political players have given the EITI process significant political backing. For the upcoming reporting cycle, some have been working day and night to ensure that all criteria are complied with. In a country with more than 500 mining title holders and a wide variety of legal and contractual revenue flows, this is more daunting than one might imagine. The international consultancy firm appointed to determine the next report’s scope is behind schedule, struggling to gather all data needed to come up with a solid draft report.

The EITI wave in DRC has started generated ripple effects that some countries might only dream of. The mere fact that the government is to collect revenue data has initiated institutional change. In the last report, the Finance Inspection had, for instance, refused to certify $88 million in payments to one of the three central tax-collecting agencies. The agency, called DGRAD, is now finally making progress on digitizing its tax management system, something it impeded for over a decade. In the copper-rich province of Katanga, the omission of about $75 million in provincial taxes in the last report alerted the local tax authorities of the need to participate in the process. The process brought to light a common practice whereby mining companies pay construction companies directly for road works in exchange for provincial road tax credits, hindering tax traceability and parliamentary oversight.

This year, mining companies requested EITI reporting forms before the reporting cycle even started. They have been demanding more rigorous paperwork from their transport sub-contractors, who pay some of the provincial taxes in their stead and sometimes shove diverse payments into one single undecipherable bill that disrupts the administrative paper trail. The industry has also become slightly better (although not yet perfect) at obtaining confirmation that their payments made it to the Central Bank, rather than accepting receipts from the tax agencies as sufficient proof of payment.

While local corporate operators and committed political actors have been instrumental throughout the process, one group has become particularly proactive: the Katanga civil society network. Albeit not officially members of the DRC EITI Executive Committee, this local civil society network chose not to wait for the next report to be sloppy before voicing their criticisms. This time they wanted flawless coverage from the start and have worked tirelessly to ensure all significant revenue flows and all major contributors are included in the next report. Two weeks ago, at 8.30 pm on a Saturday night, one of the activists suddenly realized he was running late for his friend’s wedding, too busy sifting through the tax contributions of over 150 companies active in the province. Last Saturday, as cheering resounded from the neighborhood bar upon another goal scored by the local soccer team, another activist looked up from his Excel sheet and commented, “Why am I missing the TP Mazembe game again? Ah oui, l’ITIE…” This civil society group’s determination to constructively contribute to the country’s EITI validation, by catching any gaps in reporting ahead of time, far surpasses previous efforts.

Not everyone is surfing the EITI wave yet. Among the potential stumbling blocks ahead are the controversial sales of state company assets that occurred in 2011. At the latest EITI meeting, the Ministry of Mines gave state-owned company Gécamines an ultimatum to provide all requested data needed to define the next report’s scope. It eventually met the deadline, but now the Ministry of Portfolio, Gécamines’ single shareholder, is hesitant to endorse the data. Meanwhile, the EITI Secretariat is trying to reach the entities that bought the assets. Registered in the British Virgin Islands, their official representative in the DRC is a law firm that claims it doesn’t keep its clients’ books. As long as these actors do not add their voice to the new transparency chorus, validation is still at risk. While they are catching up, those missing weddings and soccer games for the sake of EITI should tell other countries to catch the wave and ride it into March 2014 and beyond.

Is the Congolese army getting better?

Fighting has cooled between the M23 and the Congolese army––after almost a week of fighting, the front line has been calmer now for the past three days. The Congolese army has been able to advance and retake some ground, and UN observers and journalists on the ground suggest that their performance has been better this time than during the November fighting, when Goma fell. (However, the reports that the UN is holding the army back appear to be bogus; Congolese officers told me the reason they hadn't gone on the offensive was Kinshasa hadn't given them the order.)

If the Congolese army is really performing better, then why?

"This time, the logistics are much better," a UN official who works closely with the army told me. "The salaries are being paid, the supplies are getting to the front line. They still overreact and waste too much ammo, but there are a much better fighting force." When I asked a senior Congolese intelligence officer, he confirmed this, saying that General Francois Olenga had been making an effort to make sure supply chains actually function.

Both sources agreed that the departure of dozens of senior officers to Kinshasa––where around 120 officers have been sitting around in hotels in January, ostensibly for training seminars, but in reality awaiting redeployment––helped, as well. "These officers had been embezzling funds and running parallel chains of command. Their departure has simplified the military hierarchy." The Congolese intelligence officer argued: "Some of these people had been in collaboration with our enemies. Getting them out of here helped."

In addition, the army is now giving more prominence to the commando battalions, the 321 and 322 trained by the Belgians (a third is currently being trained in Kindu), the 391 trained by the Americans, and one by the Chinese (on the northern front line in Tongo). During the operations last year, these battalions had been mismanaged by the military hierarchy, which dismantled them, sent them to areas where there was little to do, and "sabotaged them by sending them into battle without supplies or knowledge of the terrain," according to one Belgian trainer.

The retirement of 322 colonels and generals in a July 7 decree also simplified things, although none if any of these commanders were on the front lines.

Of course, the problems of the Congolese army are far from over. As argued here before, the real challenge of army reform lies in tackling the culture of patronage, racketeering and impunity that undermines military discipline and any sense of hierarchy in the armed forces.

From Mutaho to Kampala––What's next?

For weary observers of the M23-FARDC standoff, the cycle of events is becoming all too predictable. Every week, dozens of rumors are spread via SMS, the web, and word-of-mouth about cross-border infiltrations from Uganda and Rwanda––most of them false, but persistent enough for it appear to be an orchestrated campaign of misinformation. Some MONUSCO officers spend many of their waking hours just hunting down the latest canard, usually to come up with nothing.

Then the fighting: in past weeks, a variety of militia loosely allied to the Congolese government have launched attacks against the M23. Last week, a small bunch of APCLS Mai-Mai somehow made their way to the north of Goma to harass the M23; before that, it was the MPA and FDLR-Soki to the northeast of Rutshuru. And now it is the M23's turn again to strike against the FARDC, attacking Mutaho, a village overlooking Goma from the north.

The backdrop of this fighting is provided by the Kampala talks. Here, too, there are patterns: both parties deploy large delegations to the Ugandan capital, where they spend weeks at a time without meeting each other. The Congolese prevaricate between a refusal to negotiate, an ultimatum for the M23 to sign a proposed deal (several of these have come and gone), and more a more flexible stance.

What is the current status? On Monday, July 8 the Ugandan facilitator put a new deal on the table, following a revised proposal by the Kinshasa delegation. The facilitator's deal would provide for an amnesty for everything but violations of international law, the integration of M23 officers and political cadres, a concrete plan for refugee return, the creation of a National Reconciliation Mechanism, and the declaration of a state of disaster for the East. The follow-up would be largely provided by the ICGLR, but would be integrated into the Framework Agreement, thus allowing UN Special Envoy Mary Robinson and the various oversight mechanisms to weigh in.

This is more than the Congolese wanted––most notably, they didn't want to integrate M23 politicians, and suggested that national reconciliation be spearheaded by the National Oversight Committee for the Framework Agreement (comité de suivi). Moreover, they will probably shirk at declaring the East a disaster area, which would commit them to legal and financial obligations toward provinces in the East (although the government had done this in 2009).

But the deal is a much bitterer pill for the M23 to swallow. It would basically require them to disband their movement, accept the deployment of their officers anywhere in the country, and receive little in return. For some of their leaders, in particular Makenga and Kaina (as well as some of those in Bosco's wing, currently in Rwanda), the sentence "promulgate legislation granting amnesty...taking into account international law," will leave their personal future in suspense.

So will fighting continue? Will the M23 or the FARDC escalate? Anything is possible, but I would imagine the Congolese army would wait for the Intervention Brigade (FIB) to fully deploy, and for the army to carry out its ongoing restructuring before making a move––and that could take at least another month. The M23 would have a greater interest in escalation, perhaps in order to preempt the FIB from deploying or improving the deal on the table. But their problem continues to be a lack of troops. With only 1,500-2,500 troops, they have to protect an area 100km long and some 20-50km wide.

So taking Goma would leave a considerable vacuum along the Rwandan border, and would probably only be possible with backing from the Rwandan army––would this once again be forthcoming?

What will become of the national dialogue?

While international attention continues to focus on the M23––there have been persistent skirmishes to the north of Goma, a meeting between the government and the M23 in Kampala, and the death of the head of FDLR-Soki––the political opposition has been meeting in Kinshasa to decide on the way forward.

Since last Saturday, hundreds of opposition politicians have been hunkered down in the Limete neighborhood, trying to decide what to do about the national dialogue. Since the controversial 2011 elections, the opposition has been demanding such a dialogue, an initiative President Kabila seemed to endorse in his State of the Union address last December. The UN Security Council has also apparently thrown its weight behind the idea, asked the head of the peacekeeping mission to "promote inclusive and transparent political dialogue among all Congolese stakeholders with a view to furthering reconciliation and democratization" in Resolution 2098. 


But the various parties seem to have radically different visions of what this dialogue should be. In his decree of June 26, Kabila used the name Concertations nationales, and placed the heads of the national assembly and senate at the head of the "presidium," which will coordinate the meeting, control the funds, and––to the outrage of the opposition––unilaterally adopt the meeting's by-laws. Discussions will take place in the assembly, which will include hundreds of people from all political parties, customary chiefs, civil society, courts and public administration, experts, and "historical figures." It's hard to see how they will come to an agreement on anything, especially as the whole thing is only supposed to last for twenty days. And there is nothing to guarantee the implementation of these conclusions: President Kabila is simply required to report the conclusions to the Congolese people, after which he is apparently free to ignore them.

The opposition has, not surprisingly, called foul, and is pushing for a change to this decree to make the discussions more balanced and their conclusions more binding. We will have to wait for the end of the Limete conclave to know more, but the opposition is also becoming a victim of its own internal divisions. The two biggest opposition parties––the MLC and the UDPS––are not officially attending the conclave, although some UDPS members are present. The UDPS continues to suffer from the split created when a majority of its election parliamentarians refused to obey Etienne Tshisekedi's order not to take up their positions in the national assembly. Accusations are now piling up that Samy Badibanga, the leader of one of the UDPS factions in the national assembly, is growing too close to Kabila.

Things are hardly better within the MLC. Jean-Pierre Bemba continues to manage the party from his jail cell in The Hague––he made the decision not to attend the conclave, suspicious that the concertations would be a means for Kabila to co-opt the opposition through a government of national unity, and perhaps even to change to constitution to allow Kabila to stay in power past 2016. This remote-control-management has allowed relations to sour among the party's remaining leaders––Jean-Lucien Bussa and Thomas Luhaka have fallen out over how the party should be managed, most recently over who the MLC should send to the national election commission. Bemba reportedly believes that a verdict in his ICC case will be forthcoming this year, and that he could be let off with time served, despite the long list of MLC-defectors who have testified against him.

Meanwhile, the new head of the UN peacekeeping mission, Martin Kobler, has not yet arrived. When he does arrive in Kinshasa, he will have the unenviable task of trying to make sure the concertations do not turn into a farce. 

Promotions in Congolese army, precursors to military reform?

Back to blogging after a two month long hiatus. I will be catching up on some of the M23, national dialogue, and third term debates soon.

Yesterday, the Congolese media published a list of new promotions in the Congolese army, including 106 new generals. This includes three ex-CNDP commanders: Esaie Munyakazi, Innocent Gahizi and Innocent Kabundi, but also a whole slew of former Mai-Mai and Hutu Local Defence commanders (Alunda, Nakabaka, Kasikila, Mayanga, and Rugayi).

In any case, the promotions are not the real story, although they do provide some solace to officers who were worrying about their future. In the Congo, very little money depends on your ranks––a Lieutenant-General earns a monthly salary of around $130, just about $60 more than the rank-and-file soldier. The money comes with the position, which bring with it official supplements (prime de commandement, fond secret de renseignement, etc.) as well as opportunities for all kind of illegal rackets. So the real news will come when the new army structure is announced and new positions are doled out, which according to some of those promoted may come later this week.

What is this new structure? According to the official plan, the county will be split into three Zones de Défense, based in Kisangani, Lubumbashi, and Kinshasa. Each zone will have three rapid reaction brigades, two defense brigades, and a share of the 20 regiments (to be reconstituted out of the current 32). As the current military regions will remain, this means that a new layer of military bureaucracy will be created, creating hundreds of new positions for officers.

Will these new structures be successful? Hard to say––the army reform plan deals mostly with form, not with substance. It creates new structures, calls for new equipment and more training. But it does not provide remedies for the root problems of the army: parallel chains of command, rampant racketeering and embezzlement, and impunity.

These new structures will, however, allow the government to deploy some of the ex-Mai-Mai and ex-CDNP officers who have been involved in local militia politics, smuggling, and profiteering in the Kivus in recent years. But will the new commanders be better?

The Framework Agreement: A good start?

Ban Ki-Moon, Jim Kim, and Mary Robinson came to the Great Lakes region this week, visiting Kinshasa, Goma, and Kigali. Their visit was supposed to provide impetus to the Framework Agreement (otherwise known as the Peace, Security, and Cooperation Framework, PSCF) signed in Addis Abeba on 24 February 2013.

The Framework Agreement is on first glance paradoxical: prompted by the recent escalation in violence in the eastern Congo, nowhere does it mention either the M23 or any other armed groups. In part, this is because it did not want to substitute itself for the (moribund) Kampala negotiations, which had been backed by the region. But this lacuna also stems from the fact that the PSCF has grander ambitions than just dealing with this recent outbreak. It wants to tackle the unfinished business of the Lusaka-Sun City peace process (1999-2006) and address the root causes of violence in the region. It sees these as the failure to build strong, accountable institutions in the Congo; and the persistent meddling of the region in the east of the country.

Admirable, to be sure. So how does it intend to go about it?

From first appearances, the strategy is to leverage donor aid to create twin processes, one with the Congolese government to build institutions, the other with neighboring countries (especially Rwanda) to provide incentives to promote development in the Congo.

There has been some progress, even before the process has kicked off in earnest. Let's take a look at some of this:

• The Congolese government has set up a three-tiered oversight mechanism for national reforms––it's run mostly out of the presidency (the president controls both the comité de pilotage as well as the comité exécutif, despite a push by Prime Minister Matata Ponyo to play a more active role), but provides for "consultations" with donors and civil society through its comité consultatif. 

• The Congolese government has also sent a draft to Mary Robinson of what a plan for national reforms could look like––while it is still under wraps, it reportedly includes efforts to sanction abusive officials, accelerate decentralization and reconciliation, and split the supreme court into three courts, as required by the constitution. 

• Separately, the government last week briefed ambassadors on their plans for SSR, possibly one of the most important institutional reforms––more on this later, but it is a serious, if overly ambitious plan that sees army reform largely as made up of restructuring, training, and equipment. It has little of combating impunity and promoting competent military leadership. 

• On the regional front, little has happened, but the signatories of the PSCF are preparing for the first meeting of the regional oversight mechanism, and Robinson will probably be submitting benchmarks to the UN Security Council in time for the UN General Assembly in September. One of the main questions here will be whether to make the benchmark for Rwanda a passive or an active one: Do we simply ask them no longer to support the M23, which is difficult to observe, or do we place the burden of proof on them, given their support to the rebels last year, and ask them to force them to accept a reasonable peace deal? 

• Then there is the development aid package, which World Bank President Jim Kim announced this week: $1 billion for development projects in the region, apparently––but not explicitly––conditional on the implementation of the PSCF. This includes a considerable amount of money for hydropower in Rwanda and its neighbors––$340 million for the Rusumo Falls project and $150 million to rehabilitate the Rusizi dam on the border between Congo, Rwanda and Burundi. Here, there appears to have been a shift in emphasis, from sanctioning Rwanda (a good chunk of the money that was suspended last year has been now disbursed) to providing positive incentives for collaboration.

• Meanwhile, donors in Kinshasa are also trying to promote more coordination in support of the PSCF, but also in order to leverage their aid for political reforms. A draft proposal for this kind of coordination is currently circulating in Kinshasa, but the Congolese government continues to be extremely allergic to any notion of a CIAT-II (CIAT was the donor coordination body during the peace process from 2003-2006).

So what does this mean? It could be a lot worse; both donors and the Congolese government have moved quickly to take advantage of the new process––a welcome sign of hope. But the entire project rests on several tricky premises: First, that there will be enough pressure on the Congolese government to carry out reforms that the leadership there has been extremely reluctant to carry out––this pressure will either come militarily, through the M23; through the opposition, which is still divided but could cohere for a serious national dialogue; or through donor coordination and leverage. The first is obviously unpalatable,;the second is ideal but will the opposition/civil society be able to present a united front?; the latter has consistently failed over the past decade. And all of this as Kabila is entering a risky three-year succession struggle (his last mandate expires in 2016, unless he changes the constitution).

Secondly, that the international community will be able to bring new approach to dealing with armed groups in the eastern Congo, especially the M23 and the FDLR. There seems to be some will to hold Rwanda accountable for the M23, but that momentum seems to be waning and faces resistance from Kigali and the successful donor programs in that country. And there has been no change to the tied-and-tested military approach to the FDLR––one could imagine some creative thinking on further incentives for high-ranking, non-genocidaire officers (e.g. third country exile, resettlement in the Congo).

Lastly, for the moment the trend is toward escalation, so there may very well be more war before there is a serious peace effort. The M23 has been fighting with the Congolese army on the outskirts of Goma for the past week, there are serious reports of an FDLR incursion into Rwanda as of last night, and the Congolese army wants to give the Intervention Brigade a chance before it considers any compromise with the M23.

What next in Kampala?

News in the Congo has been surprisingly M23-deficient in the past few days. A group of Mai-Mai attacked Beni yesterday, killing several Congolese army officers (although their commander Hilaire has links well- to the M23); Kinshasa prepares for the visit of the United Nations Secretary-General and the head of the World Bank next week; and the country awaits a new head of the election commission (Appollinaire Malu Malu is the favorite, but his Catholic church seems opposed).

Is this because Kampala is dead? It would seem so––the negotiations have been on hold for weeks now, and the M23 has withdrawn, it says, until there is an official ceasefire. It suffices to look at the various proposals on the table there at the moment to see how far apart the two sides are.

The M23's proposal (here) underscores their distrust for the Congolese government: they want a transitional period during which they would carry out joint operations with the Congolese government against "negative forces" (ADF, LRA, FDLR, etc.). Once the East is stabilized (they suggest an initial period could take five years), the M23 would integrate the army.

The government, on the other hand, (their proposal here) says the M23 would have to integrate almost unconditionally: rank-and-file soldiers and officers up to the rank of lieutenant can integrate automatically, but higher ranking officers would only be allowed in on a case-by-case basis. "Many of them would not be able to join," one of the government negotiators told me. Indeed, the government proposal currently bars soldiers who have already benefitted from an amnesty for integrating, which potentially would pertain to all ex-CNDP troops (90% of the M23's officer corps). The two top M23 commanders, Sultani Makenga and Innocent Kaina, would almost certainly not be able to join.

In response, the Ugandan facilitation has put together a compromise agreement that neither side seems to like––the government does not like the obligation to reform its institutions, while the M23 says the deal is "worse than the government's proposal," in part because it repeats the case-by-case basis of integration. But it also highlights to areas of convergence: both sides commit to bringing refugees back and securing them, and to create a high-level body to promote reconciliation.

The real reason the talks are on hold is probably because of the imminent arrival of the Intervention Brigade. The Kinshasa government believes that this brigade will solve the M23 problem, and has been bolstered by the UN Security Council resolution calling for the rebels to disband. But while the advance Tanzanian party for the brigade has arrived in Goma, the South African and Malawian troops are still dragging their feet. While for Malawi the delay is logistical, the South Africans appear to be dragging their feet in part because they didn't receive the command of MONUSCO's troops, as they had wanted.

There are different versions for why this is the case––perhaps the most persistent one is that a member of the Security Council made a political choice to back a Brazilian candidate, in part in order to prevent SADC from having too much influence in the Congo.

In any case, both sides seem to agree that some sort of military escalation is necessary to move forward.