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AI-index:
AFR 62/017/2002 22/10/2002 Democratic
Republic of Congo Making
a killing The
diamond trade in government-controlled DRC Amnesty
International: 'What
do you do when someone is shot dead in your diamond concessions?' 1.
Introduction
Every day blood is being spilled in the diamond fields of the Democratic Republic of Congo (DRC), and nobody in the international community is even talking about it. In the capital Kinshasa, the government is able to announce, unchallenged, its commitment to an international system aimed at breaking the links between the diamond trade and human rights violations,(2) while in Mbuji-Mayi, the hub of the country's diamond industry, serious abuses directly connected to the diamond trade are occurring on a daily basis, largely unchecked. Dozens
of people are being shot dead every year in the diamond fields of Mbuji-Mayi.
Still more are being shot and wounded, often seriously. Dozens, including many
children, are being held without charge in appalling conditions by security
forces who have no formal authority to detain them. Most
of the victims are suspected to be responsible for illegal mining in the diamond
concessions. The shootings occur mainly within the concessions, where most of
the victims have no legal right to be. But none of this diminishes their
entitlement to their basic rights, which include the right to life, the right
not to be subjected to cruel, inhuman and degrading treatment or punishment and
the right to a fair trial. In
some cases, the victims may themselves be armed, or be with an armed escort, and
therefore pose a genuine threat to the safety of those guarding the concessions.
But in the majority of cases these suspected illegal miners are not armed and
the use of firearms against them cannot be justified. Shooting them dead, in
such circumstances, amounts to extrajudicially executing them.(3) Despite
this, to Amnesty International's knowledge, not a single state agent has ever
been prosecuted for the unlawful killing of a suspected illegal miner in
Mbuji-Mayi. Those who guard the diamond concessions are acting, and are killing,
with utter impunity. The Congolese authorities refuse to acknowledge that these
abuses are even taking place and they crack down hard on local journalists and
human rights activists who denounce what is really happening. Relatives
of those wounded or killed in the diamond concessions are resigned to the fact
that there is little hope of obtaining redress through the courts, which are for
the most part subject either to political interference, or to corruption, or to
both. It is one of the many tangible and everyday ways in which ordinary
Congolese citizens experience being disenfranchised of their basic rights. It
also exemplifies the broader failings of governance in the DRC, whereby those
who govern are not generally accountable, and do not consider themselves to be
accountable, to the population they govern. This
lack of accountability is not only a major contributor to the country's poor
record in the sphere of civil and political rights, but is also a key factor in
the failure of successive Congolese governments to promote the country's social
and economic development more effectively. The diamonds of Mbuji-Mayi, together
with the DRC's abundant reserves of cobalt, coltan(4), copper, gold, timber,
uranium and water,(5) may have led to the country being described as a
geological scandal. But the true scandal is in fact a political and a human one:
this vast natural potential has never been properly exploited to the benefit of
the population as a whole. Unaccountable governing elites have instead become
rich through the mismanagement or misappropriation of the country's national
resources, while remaining apparently indifferent to the negative consequences
this has had for the country's overall socio-economic development. For all the
country's great potential wealth, in 2002 the DRC was ranked in 155th place out
of 173 countries in a United Nations survey of development.(6) The price of
wealth and privilege for a ruling elite has to a large extent been the
impoverishment of a nation. While
this report focuses on the abuses associated with the exploitation of one
particular natural resource in one specific place - the diamonds of Mbuji-Mayi -
the situation described there is in many ways characteristic of the situation
which prevails across the DRC. Throughout the country, state institutions such
as the judiciary are failing to discharge their duties adequately; a lack of
transparency and accountability is promoting institutionalised corruption and
mismanagement of state resources at the expense of social and economic
development; and very high levels of human rights violations, often connected
with the exploitation of natural resources or conflicts over the control of
those resources, are being committed with more or less complete impunity. 2.
A squandered heritage?
'Natural
resources are morally neutral. As such they can be a source of great good [1/4]
or dreadful ill [1/4] The key element is not the resource itself, but how it is
exploited - and Africa provides telling examples of both. An orderly mining
regime, operating within a transparent and predictable legislative and fiscal
framework, can be a major source of prosperity for governments and people.
Without it, mineral wealth - especially, but not exclusively in its more
accessible forms - will be a magnet for the greedy and corrupt to line their own
pockets at the expense of the people [...] Once the rot has set in, it is
virtually unstoppable, until the entire fabric of economic and social
development has been completely eroded.'(7) The
history of the Congo since the late 19th century has provided ample examples of
how the unprincipled exploitation of natural resources can give rise to human
rights abuses. It has also demonstrated how corruption or the mismanagement of
natural resources can undermine a country's development and hence the enjoyment
by its citizens of their social and economic rights. Kleptocratic
administrations geared towards the personal enrichment of a ruling elite at the
expense of the general population have had an enormously negative impact on the
country and its citizens down the years. The
first large-scale plundering of Congolese natural resources began in the late
19th century with Belgian colonial rule and the trade in rubber and ivory. The
Congolese population was treated not as the rightful owners or beneficiaries of
these resources, but simply as a source of cheap or slave labour for their
exploitation. King Leopold II accrued vast personal wealth without ever setting
foot on Congolese soil. Horrendous human rights violations, including unlawful
killings, torture and mutilations, were perpetrated in the process.(8) With
the accession to power of President Mobutu Sese Seko in 1965, there began a
sustained period of institutionalised corruption and misappropriation of state
resources. Large proportions of the revenues from state-owned companies, such as
the copper and cobalt company Gecamines, went not to the state treasury but
straight into the pockets of President Mobutu and his closest allies. Meanwhile,
President Mobutu's policy of 'Zairianisation', which was purportedly a drive to
reassert authentic African customs and values in the face of encroaching Western
values, entailed the nationalisation of foreign-owned businesses and
investments. Many of these were then expropriated by President Mobutu's allies,
the whole process thus amounting to a further means of illegitimately seizing
wealth. Foreign aid intended to promote socio-economic development was also
routinely misappropriated. While President Mobutu became notoriously rich, state
institutions were neglected and the country's infrastructure steadily decayed.
Just as state officials suspected of engaging in corruption were virtually never
brought to book, so they were hardly ever held to account for massive violations
of civil and political rights committed during President Mobutu's rule. With
the arrival of Laurent-Desire Kabila, who proclaimed himself president of the
DRC in May 1997 and remained in power until his assassination in January 2001,
foreign players engaged in a renewed scramble to benefit from Congolese natural
resources. A variety of lucrative deals were struck with Angolan, Namibian and
Zimbabwean interests, mostly in return for their military support in the DRC's
ongoing conflict.(9) In areas of the country under the control of the armed
opposition, a similar pattern of foreign exploitation of natural resources
emerged, with Rwanda and Uganda being the main beneficiaries.(10) During
peace talks held in early 2002 aimed at ending the conflict in the DRC, all
parties, including the DRC government, agreed upon the need to review all
commercial contracts concluded since the start of the conflict in August 1998 in
order to ascertain their validity.(15) This was a response to widespread
allegations that many, if not all, of the warring parties have been engaged in
the illegitimate exploitation of the DRC's natural resources. A comprehensive
review of the Sengamines contract would be in keeping with the commitment the
DRC government has expressed in this respect. The basic principle underpinning
such a review should be that commercial contracts involving national resources
should contribute to the progressive realisation of the population's social and
economic rights and not deprive them of the benefits to be gained from their
country's natural resources.(16) Ensuring that all future such contracts are
negotiated transparently and according to internationally recognised tendering
principles for privatisation would also afford greater guarantees that the state
and its citizens obtain the maximum possible benefit from such arrangements.(17) Accountability
in the commercial sphere is as crucial to promoting human rights, including
social and economic rights, as accountability in the political sphere is. Just
as the DRC government must bring an end to impunity for perpetrators of human
rights abuses, so it must address the endemic problems of corruption and
financial mismanagement in order to ensure that the country's huge potential
wealth is exploited as effectively as possible to the tangible benefit of the
population as a whole.(18) 3. MIBA
The
Societe
miniere de Bakwanga(19),
known most commonly by its acronym MIBA, was founded in 1961 and is today the
DRC's main diamond mining company, with an official annual turnover in the
region of $US70 million.(20) Its main operations are centred in and around the
government-controlled town of Mbuji-Mayi, which is located in the province of
Kasaï Oriental, some 950km east of the capital Kinshasa. 80%
of MIBA's shares are owned by the Congolese state and the remaining 20% by an
umbrella group called SIBEKA, which consists of the mining company De Beers,
with a 19.56% stake, and a Belgian company called Umicore, which owns the other
80.44% of SIBEKA shares. MIBA officially describes itself as a limited
company(21) and it does indeed function as a corporate entity. But at the same
time it is also effectively a state actor, with the DRC government exercising
direct political and operational control over the company. The selling-off of
two key MIBA concessions to the Sengamines joint venture in 1999, for example,
was orchestrated directly by President Kabila and it is unlikely that MIBA
officials would have been in any position to influence this decision, even if
they had considered that it went against the best interests of the company.
MIBA's current management committee, including the company's managing director (President
directeur general,
PDG), was also appointed by the government. Despite
the loss of the two valuable concessions to Sengamines, MIBA is thought to
remain the largest single contributor to the DRC treasury. Several Congolese
government authorities and MIBA officials interviewed by Amnesty International
stressed that MIBA is a key part of the war effort. MIBA is also easily the largest employer in the Kasaï region, employing
some 6,000 workers and around 1,300 security guards. In an effort to address the
glaring disparity between the riches associated with the diamond business and
the poverty experienced by most of the local population, MIBA has over the years
allocated a proportion of its revenues to community welfare projects. The
company provides Mbuji-Mayi with electricity and with clean drinking water and
contributed to the establishment of Mbuji-Mayi's university. It has built
housing, principally for MIBA employees, a hospital and some schools. It has
also set up a body called the Fondation
MIBA, known by the acronym FOMI, which has the stated aim of providing
drinking water, health centres and schools to populations in the rural areas
surrounding Mbuji-Mayi. (22) Notwithstanding
MIBA's contributions to local development and to the local economy, the overall
socio-economic situation in Mbuji-Mayi is somewhat bleak. Beyond MIBA,
employment opportunities are limited, and even where people manage to secure
jobs, the wages can be extremely low. Civil servants are sometimes unpaid
altogether. For many poor or unemployed Congolese, the lure of MIBA's diamonds
proves too great to resist and many hundreds opt to make an illegal living by
trying to steal from the diamond concessions. In so doing, they are taking an
enormous personal risk and many pay the ultimate price: dozens of illegal miners
are shot dead in MIBA's diamond concessions every year. 4.
Guarding the diamond concessions Protecting
its concessions from theft has always been one of MIBA's biggest challenges. The
sheer number of people who seek to enter the concessions illegally, estimated to
number well over a thousand every night, coupled with the absence of secure
perimeter fences and indeed a certain ambiguity as to the exact boundaries of
the concessions,(23) makes the task of guarding the concessions a virtually
impossible one. At best, MIBA can only hope to limit the numbers of illegal
miners who gain access. Only a small proportion of those who do gain access are
ever arrested. The
scale of the challenge was clear during a day-time visit to a MIBA diamond
concession known as the polygone
(polygon) in October 2001. Amnesty International delegates observed a group of
some 150 apparently illegal miners (known locally as creuseurs,
or diggers), who were standing in the shallows of the River Lubilanji, at a
point where a canal flows out into the river from one of the MIBA processing
installations. Most appeared to be between about 12 and 25 years of age and were
carrying buckets and sifting pans in order to sift the water in the hope of
finding fragments of diamond in the shallows of the river. In the presence of
Amnesty International delegates, MIBA guards managed to arrest four of these
suspected illegal miners, using their own tops to tie their arms behind their
backs before transporting them to a cell within the MIBA concession (see the
section entitled Rough Justice below). The youngest of those arrested was 14
years old. Amnesty International observed dozens of other suspected illegal
miners throughout the polygone concession.
This was in the middle of the day -- far greater numbers enter the concessions
under the cover of darkness. The
security arrangements which have been put in place to address the problem of
illegal miners are both complex and highly problematic. In the past, the
security department was a comparatively well-structured service falling under
the responsibility of the Britmond arm of De Beers. But by the late 1990s, the
guarding of the concessions had ceased to operate under a single chain of
command and had become increasingly militarised, largely as a consequence of the
armed conflicts of 1996-1997 and of August 1998 to the present day which have
made control of the Mbuji-Mayi diamond fields a key strategic imperative.(24) The
blondos are civilians and do not
officially carry firearms, although some carry catapults, sticks and other such
weapons. They receive no formal training in law enforcement, despite being
specifically charged with the task of arresting illegal miners. The blondos
are supervised and regularly accompanied by officiers
de police judiciaire (OPJs), Judicial Police Officers, who, unlike the blondos,
do carry firearms. Normally the status of OPJ denotes a member of the Congolese
security forces with powers of arrest, but a senior official in the Mbuji-Mayi
judiciary told Amnesty International that the OPJs guarding the diamond
concessions fall into a special category of OPJs '(with restricted powers), who are employed directly
by MIBA and are supposedly answerable to MIBA's head of security, rather than to
police superiors. It is unclear what training in law enforcement, if any, these
OPJs receive. Finally, MIBA also uses the services of private security firms;
such contracts are believed to be negotiated by the government rather than by
MIBA officials, but the exact terms and conditions of these arrangements are
opaque.(26) These
security arrangements are failing in another respect too -- their effectiveness,
in terms of keeping out or apprehending suspected illegal miners, is seriously
compromised by widespread corruption among the very guards who are supposed to
be protecting the concessions against illegal activities. While some illegal
miners enter the concessions without assistance, many illegal miners consider it
more prudent, or perhaps potentially more lucrative, to enter into deals with
the blondos, OPJs or soldiers.(28)
Guards will often give a group of illegal miners a password which they must use
in order to be allowed to leave the concession at the end of their clandestine
shift; in October 2001 the price of a password was said to be the equivalent of
about $7 US dollars. Sometimes the miners are also charged per head, and the
guards frequently also insist upon a share of the diamonds gathered. Given that
on any particular night there are likely to be over a thousand illegal miners
within the polygone, it is easy to see
that guards working in complicity with these miners stand to add significantly
to their official wages, which are understood to be around $10 a day. Illegal
miners have often found to their cost, however, that being in complicity with
one set of guards does not necessarily protect them from the attentions of other
guards who are not party to a particular arrangement. On occasions, there have
been shoot-outs between different contingents of guards, who are respectively
escorting illegal miners or trying to prevent them from stealing from the
concessions. On other occasions, the guards with whom illegal miners have struck
deals will renege on those deals, demanding a larger share than originally
agreed or simply taking everything at gunpoint. In some cases, guards have
opened fire without warning on the very people they had earlier taken bribes
from and allowed into the concessions. In these various ways, corruption is
giving rise directly to situations in which individuals are being put at risk of
serious human rights violations. 5.
Shootings in the concessions
'We
all know that they [the illegal miners] don't do it for the sake of doing it.
There is no alternative to that. And when we see bodies floating in the river,
or survivors hiding their injuries for fear of reprisals by the authorities, you
just have the feeling that these young people are being killed like dogs. They
don't have any rights. And no one takes any action to address the issue.
Everything is calm and life goes on.' (29) The
combination of a lack of formal training for those guarding the MIBA
concessions, the failure of the MIBA management or the local police authorities
to insist upon adherence by the guards to even the most basic principles of law
enforcement and widespread corruption among the guards has created an anarchic
situation in the diamond concessions. Throughout the hours of darkness, shots
ring out from the diamond concessions. A local resident told Amnesty
International that one night he thought the war had finally come to Mbuji-Mayi,
so intense was the gunfire. A senior MIBA official admitted to Amnesty
International that he would not venture into the concessions at night out of
fear for his own personal safety. The proximity of residential houses to the
concessions has even resulted in several cases of local residents being injured
outside the concessions by stray bullets. For example, Nkombo Kamanga was hit in the leg by a stray bullet as she slept in
her bed at night. She now walks with a limp as a result of the injury and her
family is understood to be seeking compensation from MIBA. That
many shots are fired within the diamond concessions is not in doubt. Amnesty
International observed hundreds of spent bullet cartridges on the ground in just
one small area on the bank of the River Lubilanji. The Congolese authorities and
MIBA officials maintain that the shots are mostly fired by illegal miners in
order to disperse MIBA guards and thereby gain entry to the concessions. They
further maintain that the OPJs and soldiers on duty at the concessions only ever
use their arms in self-defence. In some cases, illegal miners are indeed armed,
or are accompanied by corrupt MIBA guards or other state officials who are
armed. On occasions, this has led to shoot-outs in the concessions. In one such
shoot-out on 8 September 2002, for example, a police officer called Muamba
Mukuna was shot dead by MIBA guards in the polygone concession after a heavy exchange of gunfire. He was
reportedly in civilian clothing but was armed, and was reportedly accompanying a
large group of illegal miners. However,
it appears that the majority of illegal miners are not armed. For instance, not
a single one of the roughly 250 apparently illegal miners spotted by Amnesty
International delegates in the course of their three-hour visit to the polygone
concession in October 2001 appeared to be carrying a firearm. The hundreds of
spent cartridges Amnesty International observed on the bank of the River
Lubilanji not only appeared to match the type of rifle the soldiers in the
concessions were carrying, but were also lying directly next to a MIBA
guard-tower, strongly suggesting that the rounds were in fact fired by MIBA
guards, not by illegal miners. On
the basis of all the available information, including eye-witness accounts, and
despite official attempts to deny or to play down the scale of the problem, it
is clear that it is the MIBA guards, not the illegal miners, who are doing most
of the shooting in the diamond concessions. It is also clear that suspected
illegal miners are being shot on a daily basis. No precise statistics have been
compiled on the numbers of those wounded or killed, but Amnesty International
conservatively estimates that several dozen, but possibly significantly more,
are shot dead every year by MIBA guards. Many more, probably numbering several
hundred a year, sustain gunshot wounds of some kind, which are often serious. In
the majority of cases, the guards cannot claim legitimate self-defence, since
the victims are unarmed and pose no genuine threat to their safety. The reality
is that MIBA guards are frequently opening fire without warning on unarmed
civilians as a first rather than as a last resort, thereby violating some of the
most fundamental principles of law enforcement.(30) The majority of the killings
which result in these circumstances amount to extrajudicial executions. Eighteen-year-old
Mukeba Muchuba was part of a group of ten illegal miners, including
his brother, who sought to gain access to the polygone on 16 September 2001. MIBA guards discovered their presence
on the banks of the River Lubilanji and opened fire. While the others in his
group managed to escape unharmed, Mukeba Muchuba was shot in the head by a MIBA
guard. He immediately lost consciousness and spent the next three weeks in
hospital. His power of speech was impaired by the injury he sustained. Like
most illegal miners, Mukeba Muchuba had risked going to the polygone
despite being well aware of the potential dangers. A friend of his, Kabongo,
had been killed there in early 2001 after he had been caught by a MIBA guard
climbing out of one of the mines. The guard reportedly announced that he was
going to kill Kabongo, who was unarmed, and then proceeded to shoot him dead in
cold blood. He then asked two of Kabongo's friends to go over and confirm that
he was dead. The guard then said to them: 'That
is the fate reserved for all of you.' In
late August 2001 27-year-old Mulumba
Tshitamba entered into an arrangement with some MIBA guards to form a group
of 15 people to go and work in the polygone. They worked at night near a plant called Massif
5, where industrial waste is pumped into a canal and small diamonds can be
found amid the gravel. The group gathered gravel and then took it down to the
River Lubilanji to sift through it for diamonds. While they were by the river,
the guards with whom they had made the arrangement appeared and signalled them
with a torch. Four of the miners went towards the guards and when they were
within about 50 metres of them, the guards opened fire on the miners without
warning. Mulumba Tshitamba fled and hid near a pile of sand but he was
discovered and shot twice in the right leg -- once near the knee and once in the
calf. Amnesty International has no information on what happened to the other
three miners who had been with him. On
29 June 2001 24-year-old Mukenyi Kalala
was on the far side of the River Lubilanji, when he was approached by a group of
guards who suggested he form a group of diggers to go into the
polygone. He organised a group of ten diggers and, having paid 10,500FC
(roughly $35 at the then exchange rate) to the guards, they entered the polygone.
At about 3pm, as they were leaving the polygone,
another group of guards appeared and immediately opened fire on them. Mukenyi
Kalala was shot in the right shoulder, the bullet passing right through him, and
he lost consciousness. He
believes that eight of the other illegal miners in his group were shot dead, but
Amnesty International has not been able to confirm this information or obtain
the names of those who may have died. While
some illegal miners like Mukenyi Kalala risk going into the mining concessions
in broad daylight, the majority of illegal miners gain access under the cover of
darkness. 39-year-old Jean-André
Shambuyi and four others gained illegal access to the polygone
on 19 April 2001, without entering into any arrangement with MIBA guards. At
around 3am at a location in the heart of the polygone called la route de 20
metres, a group of armed guards suddenly appeared and opened fire on them
without warning. Jean-André Shambuyi was shot from behind in the base of the
back, causing his intestines to spill out. Three of the other illegal miners
fled and managed to escape, but the fourth person in their group came to his
assistance and managed to ensure that he was taken to hospital for treatment.
Jean-André Shambuyi later expressed his gratitude by naming his next child
after this person, who, he believes, saved his life. He has been left with
severe scarring from the bullet wound and suffers from pains in his leg and from
bad circulation of the blood. On
16 October 2001, the day that Amnesty International delegates visited the
village of Luamuela, located on the outskirts of the polygone
on the far side of the River Lubilanji, one of the villagers, Dibua Brinch, was being buried. He had been shot dead on 12 October,
reportedly by a Zimbabwean soldier who had crossed to the Luamuela side of the
River Lubilanji apparently with the express purpose of killing him. Dibua Brinch
left behind eight children and a pregnant wife.(31) Another Luamuela resident, Kalala
Wakala, was shot dead around 12 October, also reportedly by a Zimbabwean
soldier. Luamuela villagers claim that people are being shot on a daily basis by
MIBA guards. During
their visit to the polygone concession
in October 2001, an Amnesty International delegation, accompanied by senior MIBA
officials, experienced at first-hand the readiness of Zimbabwean soldiers to
resort to firearms. As the delegation approached one of the exits to the
concession in their vehicles, they were stopped at gunpoint by ZDF soldiers. A
senior ZDF officer repeatedly shouted 'get
out or I shoot, get out or I shoot' while brandishing a gun at the vehicles'
occupants. One of the Amnesty International delegates had a pistol pressed into
his collarbone and was forcefully dragged from the vehicle. A MIBA employee was
slapped in the face by a ZDF soldier and photographic equipment belonging both
to Amnesty International and to MIBA was temporarily confiscated. The ZDF
soldiers claimed to be unaware of the Amnesty International visit and appeared
to be under the impression that any such visit required ZDF authorisation. The
delegation was detained for around half an hour, until a more senior-ranking ZDF
officer arrived and apologised for what he described as a 'misunderstanding'. This
incident demonstrated not only the readiness of ZDF soldiers to brandish
firearms at unarmed civilians and to use excessive force, but also the extent to
which the ZDF is acting independently of any Congolese command structures, be
they civilian or military. It is remarkable that Zimbabwean troops should wield
such power in a mining concession within the DRC which, unlike the Sengamines
concessions, is still owned and run by a Congolese, largely state-owned company. Finally,
in addition to the shootings, some illegal miners are also seriously injured or
killed when mines collapse. There are areas in diamond concessions, including
the mine rouge (red mine) within the polygone concession, where illegal miners dig holes some 20 to 30
metres deep, lower each other down by rope, and then tunnel out horizontally
from the bottom of the holes in search of diamonds. Amnesty International
witnessed a group of some 70 illegal miners engaged in this kind of mining at
the mine rouge. MIBA says that they
regularly bulldoze over these holes but that the illegal miners simply dig new
holes. Amnesty International received disturbing reports, however, that MIBA
officials were sometimes guilty of bulldozing over the holes without properly
checking whether there were miners down the holes at the time. For example, five
illegal miners, including Mandefu Tshiovo
Kabeya, who was just nine years old at the time, were reportedly buried
alive in April 2000. 6.
Rough justice According
to MIBA officials, around 10 to 15 suspected illegal miners are arrested every
day at the polygone concession. There
are makeshift cells within the buildings that stand at the two main entrances to
the polygone, where suspected illegal
miners are initially detained. Amnesty International delegates saw one of these
cells from the exterior during their visit to the polygone
-- it appeared to be around four metres square in size and at least four
detainees were being held there at the time, all of whom appeared to be
children. There did not appear to be provisions for detaining children
separately from adult detainees. Because
of the absence of toilets, the detainees, who in April 2002 numbered some 180,
relieve themselves in the cells, rendering them virtually uninhabitable.
Detainees therefore spend almost all of their time outdoors in a small,
fenced-in enclosure which surrounds the detention centre. Their constant
exposure to the elements renders them highly vulnerable to disease. The average
age of the detainees in April 2002 was around 15, but there are no provisions
for detaining minors separately from adult detainees.(33) Some of them had been
detained in these appalling conditions, which amount to cruel, inhuman and
degrading treatment, for at least two weeks. Appeals from the detainees to be
transferred to the Procuracy appear to be routinely ignored. Relatives
are able to visit detainees, and indeed such visits are encouraged by MIBA
guards, since relatives are informally required to pay them 100FC
to gain access. Relatives can also pay what are called amendes transactionnelles (compromise fines) to secure the release
of detainees. These so-called fines were reportedly in the region of 5,000FC
(roughly $17 at the exchange rate in October 2001) -- a significant sum for many
Congolese families. In
the event that the requisite amendes
transactionelles are not paid, some suspected illegal miners may face trial
before a military tribunal called the Cour
d'ordre militaire (COM), Military Order Court, which was established in 1997
by the late president Laurent-Désiré Kabila. The COM does not meet
international standards for fair trial and, according to its own statutes, has
no jurisdiction in cases involving civilians. However, this has not stopped it
from trying and imprisoning dozens of political activists, journalists, and
human rights defenders in manifestly unfair and politically-influenced trials.
There can be no justification for trying suspected illegal miners, most of whom
are civilians and many of whom are children, before a military tribunal.(34) If
they are to be put on trial, they should be tried before an ordinary civilian
court of law and enjoy their full legal rights, including proper legal
representation and the right to appeal against their sentence. 7.
Silencing the critics
The
Mbuji-Mayi authorities have been quick to seek to silence local activists who
speak out against the abuses being committed within the diamond concessions. Crispin
Kalala Mpotoyi, the owner of a local radio and television station called Radio-Television Debout Kasaï, is one of the few local
journalists to have publicly denounced the shootings at the diamond concessions.
On 2 October 2001 he was arrested by police and held in custody until around
10pm that evening. While the immediate motive for his arrest is thought to have
been a radio program broadcast earlier that same day in which he had criticised
the governor of Mbuji-Mayi, his denunciations of the abuses at the MIBA
concessions were also a factor. While in custody, he was reportedly made to
draft and sign a document, dictated to him by police officers, in which he
pledged to cease covering certain subjects during his radio and television
broadcasts. These subjects included the shootings at the MIBA concessions. On
10 October he was rearrested and held until late the following night. During
this time, he was again questioned about his radio and television broadcasts.
Following his release, he was ordered to report to the
Procuracy twice a week. In addition, two programs, one on radio and one on
television, which he had been presenting every week were banned. He was later
charged with inciting revolt and ethnic hatred, supposedly on the
basis of previous broadcasts on his radio station. The charge was manifestly
contrived in an attempt to silence an outspoken critic. Amnesty
International delegates witnessed at first-hand the ongoing harassment of
Crispin Kakala. A private meeting between Amnesty International and the
journalist in October 2001 was interrupted by the arrival of Mbuji-Mayi's head
of police, who proceeded to ask a series of questions about the purpose of the
meeting. It was this same police officer who had personally arrested Crispin
Kalala the previous week. On this occasion, he was accompanied by an OPJ
employed by MIBA. Other
local human rights activists have also found themselves targeted by the
authorities for speaking out. Charles
Mfwamba Mukendi, head of a local human rights group called the Centres
d'etudes et de formation populaires pour les droits de l'homme, (CEFOP),
Centre of Grassroots Studies and Training in Human Rights, has long campaigned
against the abuses at the MIBA concessions. At 6am on 22 October 1999 he was
arrested for publishing supposedly seditious documents, which was apparently a
reference to a report which CEFOP had released on killings at the MIBA
concessions. He was transferred to the capital Kinshasa where he was held for
nine months in an unofficial security service detention centre without ever
being formally charged. Amnesty International considers that he was a prisoner
of conscience, arbitrarily detained because of his denunciations of human rights
violations at the MIBA concessions. Despite the personal risks involved, Charles
Mfwamba Mukendi continues to work actively as a human rights defender in
Mbuji-Mayi. He is kept under sporadic surveillance by the security services as
he goes about his work. 8.
Turning a blind eye
MIBA
and local justice officials, for their part, consistently play down the number
of people killed in the diamond concessions and deny that any of the killings
are deliberate or unlawful. A senior MIBA official asserted to Amnesty
International that perhaps a maximum of four people a year die in the
concessions and that such deaths tended to occur only when MIBA guards are
forced to fire back when shot at by illegal miners. He dismissed as propaganda
reports that large numbers of miners were being killed and wounded in the
concessions and claimed that such propaganda was intended to force MIBA to
reduce its deployment of guards, thereby making it easier for illegal miners to
gain access to the concessions. Another
senior MIBA official interviewed by Amnesty International in October 2001
conceded that there was occasionally what he described as an 'accident', in
which illegal miners were shot. He claimed to know of only two such 'accidents'
having occurred since the beginning of 2001. Disturbingly, he also conceded that
when illegal miners were killed within the diamond concessions, MIBA took no
steps to investigate the circumstances of the death. In answer to a question on
what was done by MIBA in such situations, the official simply replied: 'Rien.' ('Nothing.') A
senior judicial official, also interviewed in October 2001, asserted that during
the previous two months he knew of five deaths having occurred at the polygone
concession. In only one of these cases, the killing of an individual called Mulongo,
was an investigation by the judiciary said to be in progress. The official could
not explain why no investigations were underway into the circumstances of the
other four deaths or indicate what concrete steps had so far been taken in
investigating Mulongo's death. He was also unable to give any official figures
regarding other investigations which might have taken place in recent months or
years, or to cite a single case in which a MIBA guard was known to have been
brought to justice in connection with the death of an illegal miner within the
diamond concessions. This is not surprising -- to Amnesty International's
knowledge, not a single MIBA guard has ever been put on trial for the killing of
a suspected illegal miner, let alone convicted. (35) By
denying that extrajudicial executions and serious gunshot injuries are occurring
within the diamond concessions, and by failing to properly investigate the few
deaths which are officially acknowledged, the authorities are ensuring that
these abuses can continue to be committed with complete impunity. Such inaction
amounts to a tacit endorsement and encouragement of these abuses. Under
international law, senior officials may be held accountable for extrajudicial
executions which take place under their jurisdiction, if it is reasonable to
assume that they knew, or should have known, about the risk of such executions
taking place and were in a position to prevent them.(36) Given that in the
course of just four days spent in Mbuji-Mayi Amnesty International researchers
were able to gather detailed and extensive evidence of extrajudicial executions
and non-fatal shootings having occurred within the diamond concessions, it seems
reasonable to assume that the Mbuji-Mayi authorities are in a position to do
likewise if they so wished. Their failure to do so is, at the very least, a
dereliction of their duties under international law to initiate proper
investigations into suspected cases of unlawful killings.(37) At worst, it is a
deliberate refusal to act on the evidence available and to prevent further
abuses. The
patent inadequacy of the judiciary's existing investigative procedures, which
have so far failed to bring a single perpetrator to justice despite the
existence of a clear pattern of abuse, points strongly to the need to establish
an independent commission of inquiry in order to redress the human rights
situation in the diamond concessions.(38) Where sufficient evidence emerges of
human rights violations having been committed, every necessary step needs to be
taken to bring the perpetrators to justice, as well as anyone in authority who
is considered complicit in those violations.(39) 9.
Training MIBA's guards(40) Dismantling
Mbuji-Mayi's culture of impunity is crucial to putting an end to the lawlessness
which currently reigns in the diamond concessions and the human rights
violations to which this gives rise. MIBA guards need to know that they will be
held accountable for any human rights violations which they commit in the course
of their duties, as well as for any acts of corruption.(41) As well as ensuring
that they are properly supervised and that all incidents involving the use of
firearms are properly investigated, it is essential that MIBA guards receive
thorough training in law enforcement principles and techniques. Basic principles
of human rights and policing ethics should form the core of this training, with
the primary focus being on avoiding the use of force or firearms wherever
possible.(42) The
two basic principles of international law which govern the use of force by law
enforcement officials(43) are necessity and proportionality. Force should be
used in dealing with criminal suspects only if other means prove ineffective.
Where the use of force is considered to be unavoidable, law enforcement
officials must act with restraint and in proportion to the seriousness of the
offence or to the threat posed, and every effort should be made to minimise
injury. (44) Where injuries do occur, medical treatment should be made available
as soon as is possible. The guidelines relating to the use of firearms are even
stricter. Law enforcement officials who are expected to carry firearms in the
course of their duties should receive adequate training in their use before
being authorized to carry them.(45) Firearms should only be used in self-defence
or in the defence of others against the imminent threat of death or serious
injury. Intentional lethal force may only be used when strictly unavoidable in
order to protect life.(46) Wherever possible, law enforcement officials are
required to identify themselves as such, give a clear warning that they are
armed and give adequate time for a criminal suspect to respond to that warning. The
role played by both Zimbabwean and Congolese soldiers in guarding the
concessions is a cause for particular concern. While Amnesty International
acknowledges the right of the government to deploy troops to defend a key
strategic location against attacks by its armed political opponents,(49) the
soldiers deployed within Mbuji-Mayi's diamond concessions are in practice acting
as law enforcement officials with a responsibility for protecting the
concessions against illegal civilian miners, not opposing military forces. Any
military training which these soldiers may have received would not be applicable
to a civilian context in which they are required to apprehend criminal suspects
without the excessive use of force. If they are to act as law enforcement
officials, these soldiers should receive the same training in civilian law
enforcement techniques as other MIBA guards, they should be integrated within
the same civilian chain of command(50) and they should be held accountable for
any human rights violations they are suspected of having committed. If these
conditions cannot be met, Amnesty International considers that soldiers should
not be permitted to play a law enforcement role within the diamond concessions. 10.
Making human rights everyone's business(51) Although
the primary responsibility for addressing the human rights violations associated
with MIBA's diamond concessions lies with the DRC state authorities, MIBA itself
also has a role to play in promoting respect for human rights within its sphere
of influence. Considered as a state actor, MIBA is bound by the provisions of
international human rights law, but as a business entity it is also expected to
meet the same ethical standards of corporate practice required of all
businesses.(52) This applies equally to the minority shareholders in MIBA, De
Beers and Umicore. One
way in which MIBA can seek to minimise the risk of contributing to human rights
violations is to develop and enforce an explicit code of ethical corporate
practice, founded on basic human rights principles.(53) This would complement
other measures being taken, such as training in law enforcement for MIBA guards.
De Beers has itself developed a series of best practice principles for the gem
diamond industry, part of the objective of which is to ensure that the diamond
trade is not associated with, or complicit in, abuses against local populations.
For example, under the heading 'Consumer
confidence', De Beers' principles state that: 'the
injury and hardship suffered by local populations (and the potential for it)
when conflicts arise in diamond producing areas are unacceptable, as is seeking
to profit from such conflicts'. Under
the heading 'Business Practices', the
text continues: 'We
are committed to operating our businesses in such a way that we neither engage
in, nor encourage in any manner, the following practices which are regarded as
unacceptable and against the public interest and that of the diamond industry:
[...] [the] buying and trading of rough diamonds from areas where this would
encourage or support conflict and human suffering.'(54) Amnesty
International welcomes the commitment to human rights expressed by De Beers in
these principles and considers it important that both De Beers and Umicore, as
minority shareholders in MIBA, demonstrate that they are themselves upholding
and implementing these principles in the DRC. In 1999 De Beers took a decision
to close all of its diamond buying offices in the DRC as part of its broader
stated policy of addressing the problem of so-called conflict diamonds: 'In
October 1999, De Beers announced an embargo on the purchase of all diamonds from
Angola [...] and that we would close our buying operations there and in other
west and central African countries. This was motivated by concern for the
suffering of the people of these countries, where conflict is in part sustained
by the proceeds of illicitly obtained diamonds. De Beers now has no buying
offices in Angola, the Democratic Republic of Congo or Guinea.'(55) Under
the current definitions being used by the diamond trade, the term conflict
diamond is only applied to diamonds being traded by armed political groups, not
by national governments. However, De Beers and Umicore should also give
consideration to the extent to which their involvement in the largely state-run
diamond trade in the DRC is currently consistent with their stated concern for
the welfare of local populations and with their human rights obligations. As
shareholders, De Beers and Umicore are in a uniquely privileged position to use
their influence in a positive way to improve MIBA's human rights record and to
contribute to bringing an end to the abuses being committed in the diamond
concessions. By
introducing and implementing coherent and transparent human rights policies,
MIBA, De Beers and Umicore would be signalling their commitment to breaking the
existing link between diamond-mining operations and human rights violations in
Mbuji-Mayi. These policies should be seen not merely as an adjunct to MIBA's
commercial activities but as a core element of its corporate strategy. Many
companies have come to realise the beneficial effects which a good human rights
record can have on a company's image and thus its commercial performance. As
Mary Robinson, the former UN High Commissioner for Human Rights, has pointed
out: 'Twenty
years ago few companies had environmental policies. Today the environment is
unquestionably a mainstream business issue. So it should be with human rights.
Having a strong human rights policy and a sound implementation strategy is about
risk management and reputation assurance. Human rights is a bottom-line issue.' 11. Conclusion
'Diamonds
are the inheritance of the people of Sierra Leone, Angola and Congo and should
be used to provide development and prosperity [...].'(56) The
equitable harnessing of the DRC's vast natural resources, including its
diamonds, is essential to promoting the future prosperity of the nation and the
welfare of its people. In the current situation, in which large sections of the
country are under the control of armed forces opposed to the government of
Joseph Kabila, it is clearly impossible for one central authority to properly
exploit all of these resources, while the enormous costs of prosecuting a war
inevitably diminish the resources available for development. Nevertheless, over
the longer term, it is incumbent upon the DRC government to do everything within
its power to ensure that the country's natural resources, including the diamonds
of Mbuji-Mayi, are exploited in such a way as to promote as effectively as
possible the development of the country and the progressive realization of the
population's economic and social rights. An
integral part of this process has to be bringing an end to the decades of
financial mismanagement and outright corruption which have contributed directly
to the DRC's current socio-economic crisis, as well as being at the root of
major human rights abuses. The opaque contracts involving foreign interests that
have been signed in the course of the current armed conflict in the DRC,
including the Sengamines deal, are merely the latest in a long line of
arrangements which appear to have benefited a small elite to the detriment of
the vast majority of the population. There is clearly a need to review all such
existing contracts to determine the extent to which they are consistent with
appropriate development goals and to ensure that all future such contracts are
negotiated transparently and in accordance with internationally recognized
principles for public tendering and bidding. In
the more immediate term, the DRC government must take urgent and effective steps
to bring an end to the human rights violations being perpetrated in the diamond
fields of Mbuji-Mayi and to bring those suspected of responsibility to justice.
The international community, from national governments to individual consumers,
also has an important role to play in encouraging the DRC government to end
these abuses and to clean up its diamond trade. Until now, the main focus of the
international community has been on so-called conflict diamonds traded by armed
political groups, such as the Revolutionary United Front in Sierra Leone or
UNITA in Angola, but the situation in Mbuji-Mayi points clearly to the need to
submit the commercial activities of national governments to similar
international scrutiny. In order to be effective and consistent, the
international system of diamond certification agreed by governments through the
Kimberley Process needs to take account of the fact that human rights abuses
directly related to the diamond trade are also taking place beyond the context
of armed conflict and in areas under the control of national governments. The
words of a former British government minister are just as applicable to the
DRC's official diamond trade as they are to the commercial activities of armed
political groups: 'You
want to make sure that the diamond you are putting on your loved one's finger
did not help cut off the finger or a hand of a child in Sierra Leone, Angola or
Congo.'(57) In
the DRC, suspected illegal miners in Mbuji-Mayi may not be having their limbs
amputated like the civilians of Sierra Leone.(58) But they are being shot at,
they are being seriously wounded and they are being killed. While for many
people throughout the world diamonds may be a symbol of love, for the families
of Dibua Brinch, Kalala Wakala and of all the other mostly young men who have
lost their lives in the diamond fields of Mbuji-Mayi, diamonds will forever be
associated with irreparable loss and death. 12.
RECOMMENDATIONS To
the DRC government
Bring
an end to extrajudicial executions and intentional woundings in the MIBA diamond
concessions by:
Ensure
fair treatment of suspected illegal miners by: ·
ensuring that any
individuals who are shot or otherwise injured in the diamond concessions receive
immediate medical treatment and, where necessary, are transferred without delay
to a medical centre where they can receive appropriate treatment; ·
taking immediate
steps to close down all unofficial detention centres being run in the MIBA
concessions and ensuring that anyone arrested on suspicion of illegal mining is
transferred without delay to an officially recognised detention centre where the
detainee has access to relatives, legal assistance and any medical attention
which might be required; ·
ensuring that,
wherever possible, minors are detained separately from adults and their cases
are handled with the highest priority to reduce to a minimum the time they spend
in pre-trial detention; ·
ensuring that if
detainees are to be charged with a criminal offence, they are brought promptly
before a competent civilian court of law to answer the charges against them; ·
ending the practice
of trying suspected illegal miners and other civilians before the Cour
d'ordre militaire. Promote
accountability and transparency by: ·
making public and
reviewing, in line with the government's commitments at the Inter-Congolese
Dialogue held in South Africa in March and April 2002, the terms of the contract
concluded between the DRC government and the Sengamines joint venture in 1999; ·
ensuring that all
commercial contracts involving national resources are negotiated transparently
and according to internationally recognised principles of public tendering and
bidding, with a view to ensuring that the Congolese people obtain the maximum
possible benefit from such contracts, including in terms of promoting the
country's overall social and economic development. To the Zimbabwean
government ·
publicly acknowledge
and condemn the extrajudicial executions and other serious violations being
perpetrated in the diamond concessions of Mbuji-Mayi, including by members of
the Zimbabwe Defence Forces (ZDF); ·
fully cooperate with
any investigations into suspected extrajudicial executions, including the
shootings of Dibua Brinch and Kalala Wakala, and intentional woundings in the
diamond concessions and ensure that any ZDF soldiers suspected of responsibility
are brought to justice in accordance with international standards for fair
trial; ·
ensure that ZDF
soldiers are only permitted to act as law enforcement officials in the diamond
concessions if they receive proper training in civilian law enforcement,
including in principles relating to the use of force and firearms as well as
first aid training, and that they are integrated into a single chain of command
with all other personnel acting as law enforcement officials in the concessions;
·
make public the terms
of the contract entered into by the DRC government and the Sengamines joint
venture in 1999, in the interests of transparency and accountability. To
MIBA
·
ensure that any MIBA
employee, including blondos and officiers de police judiciaire, who is suspected of human rights
violations is immediately suspended from their duties, pending further
investigations and any legal proceedings against them; ·
cooperate fully with
any commission of inquiry set up to investigate human rights violations and
corruption committed within the diamond concessions, including by establishing
effective reporting mechanisms to ensure that all cases where firearms are used
are reported to the commission of inquiry; ·
ensure
that any individuals shot or otherwise injured in the diamond concessions
receive immediate medical treatment and, where necessary, are transferred
without delay to a medical centre where they can receive appropriate treatment; ·
immediately close the
unofficial detention centres being operated within the MIBA concessions and
ensure that when suspected illegal miners are apprehended they are immediately
transferred to the jurisdiction of the appropriate state institutions; ·
provide resources for
training in law enforcement for all personnel acting as law enforcement
officials with the diamond concessions; ·
develop and enforce
an explicit code of corporate practice, based on the principles of international
human rights law; ·
make public the terms
of all contracts entered into with private security firms and establish
effective screening procedures to ensure that MIBA does not employ anyone in its
diamond concessions who has committed, or is suspected of having committed,
human rights abuses in the past, or have dealings with any companies which have
a poor human rights track record; ·
enter into a
constructive dialogue with local civil society on questions of social
investment, in keeping with MIBA's stated commitment to promoting local
development, and publish periodic studies into the social impact of MIBA's
activities. To
the minority shareholders in MIBA ·
take every step to
ensure that their involvement in the DRC's diamond trade is consistent with
their obligations under international law to promote and respect human rights
within their sphere of influence, as well as conforming to the spirit of the
system of international diamond certification agreed through the Kimberley
Process, which aims to ensure that the diamond trade does not contribute to
human rights abuses; ·
raise their concerns
with the MIBA management and the Congolese state authorities over the
extrajudicial executions and other human rights violations which are being
perpetrated in the diamond concessions of Mbuji-Mayi; ·
use their influence
to press MIBA to cooperate fully with any commission of inquiry which is set up,
to introduce rigorous law enforcement training for all MIBA guards, and to
introduce effective screening procedures to ensure that MIBA does not employ
anyone in its diamond concessions who has committed, or is suspected of having
committed, human rights abuses in the past, or have dealings with any companies
which have a poor human rights track record; ·
contribute expertise
and experience to the formulation and enforcement of a code of corporate
practice for MIBA, based on the principles of international human rights law; ·
encourage and
participate in a constructive dialogue between MIBA and local civil society on
questions of social investment and encourage MIBA to publish periodic studies
into the social impact of its activities. To
the international community ·
publicly condemn the
serious human rights violations, including extrajudicial executions, which are
being perpetrated in the diamond concessions of Mbuji-Mayi and pressure the DRC
government to take all necessary steps to bring an end to these violations; ·
lobby for the
international system of diamond certification agreed through the Kimberley
Process to become an effective mechanism by which to monitor the human rights
record of all actors in the international diamond trade; ·
the diamond industry,
including Belgium's Diamond High Council (Hoge Raad voor Diamant), should take
steps to ensure that diamonds from MIBA which enter international markets have
not been mined in a manner which has contributed to human rights violations ; ·
contribute resources
and expertise to ensure adequate training for law enforcement officials in the
DRC. 13.
Footnotes (1)
Amnesty International interview with an official from the DRC's main
diamond-mining company, MIBA, in October 2001. (2)
In April 2002 the DRC government signed up to an international system of diamond
certification agreed by governments through the Kimberley Process. The system is
intended to stem the international trade in conflict diamonds, which are defined
by the Kimberley Process as rough diamonds traded by armed political groups to
help finance their armed opposition to recognized governments. For further
information, see the official website, www.kimberleyprocess.com (3)
Extrajudicial executions are unlawful and deliberate killings carried out by
order of a government or with its complicity or acquiescence. Instruments of
international human rights law which pertain to this issue include the
International Covenant on Civil and Political Rights (ICCPR), Article 6 of which
asserts every human being's inherent right to life, and the Principles on the
Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary
Executions, adopted by the United Nations in 1989. (4)
Coltan is an abbreviation of colombo-tantalite, an ore consisting of two rare
metals called columbium (also known as niobium) and tantalum. The latter is
refined for use as a component in electronic chips and is hence present in a
wide-range of common appliances, including cell phones, play stations and laptop
computers. (5)
The many waterways of the DRC, including the River Congo, offer a great
potential source of hydroelectric power, estimated at some 100,000 MW. On the
African continent this potential is rivaled only by Cameroon. (6)
See the Human Development Report of 2002 produced by United Nations Development
Programme (UNDP), available at UNDP's website: www.undp.org The DRC was ranked
155th on the report's human development index, which is based on the criteria of
life expectancy, educational attainment and adjusted real income. (7)
Nicky Oppenheimer, De Beers Chairman, addressing the Commonwealth Business
Forum, Johannesburg, South Africa, 11 November 1999. (8)
These violations have been well documented elsewhere. See for instance King
Leopold's Ghost by Adam Hochschild, MacMillan, 1999. (9)
Since August 1998, the DRC government has been at war with Congolese armed
groups in the north and the east of the country who are supported by Rwanda,
Uganda and, to a lesser extent, Burundi. The DRC government has received
military support principally from Angola, Namibia and Zimbabwe. Following peace
accords signed by the Congolese government with Rwanda on 30 July 2002 and with
Uganda on 6 September 2002, foreign troops on both sides have begun to withdraw
from the DRC. (10)
Human rights abuses associated with economic exploitation taking place in areas
under the control of the armed opposition and their foreign backers are the
subject of a forthcoming, separate Amnesty International report. (11)
Diamonds are the product of carbon which has been subjected to intense heat and
pressure deep underground. They were brought close to the earth's surface during
eruptions of molten magma which solidified into rock called kimberlite. Millions
of years of rain and erosion have freed the diamonds closest to the earth's
surface and washed them away across the landscape and into the gravel of
riverbeds or into the ocean. These secondary deposits are called alluvial
deposits. (12)
Sengamines was formed by a company called Cosleg - the result of a merger of
Osleg (Operation Sovereign Legitimacy) and Comiex (Générale de commerce
d'import/export au Congo) - in collaboration with Oryx Zimcon. The latter is
itself a joint venture between the Zimbabwean Defence Forces (ZDF) and Oryx
Natural Resources, a company registered in the Cayman Islands which was
reportedly given the exclusive rights to explore for and exploit diamonds and
other minerals in these concessions for a period of 25 years starting from 16
July 1999, or until the reserves are exhausted. The majority stakeholder in
Comiex was reportedly previously Laurent-Désiré Kabila; it is unclear to whom
his shareholding may have passed after his death. The commander-in-chief of the
ZDF and the permanent secretary in the Zimbabwean Ministry of Defence are
reportedly two of the major shareholders in Osleg. Some former Congolese
government were reportedly shareholders in Cosleg. The exact shareholdings of
these various players in Sengamines are unclear, but it appears that Oryx is the
largest single shareholder, although not a majority shareholder. (13)
The UN Panel of Experts on the Illegal Exploitation of Natural Resources and
Other Forms of Wealth, mandated by the UN Security Council, published its
initial report on economic exploitation in the DRC in April 2001, followed by an
Addendum in November 2001. The panel is due to produce a further report by the
end of 2002. (14)
The impression that Sengamines is benefiting from a tax exemption is
strengthened by documentation produced in 2000 by a company which at the time
was considering acquiring Oryx Natural Resources (see footnote 12). In a section
detailing the commercial structure of Oryx, the documentation reads: 'Mining
operations developed on the Concession [the same concessions now run by
Sengamines] benefit from the complete exemption from all import duties and
corporate taxes for a period of six years commencing on the development of each
production facility undertaken on a project by project basis.' President
Laurent-Désiré Kabila authorised a similar, five-year exemption from taxes for
the Hewa Bora airline, which was also set up in 1999. President Kabila and
members of his family were reportedly the major shareholders in Hewa Bora. (15)
The peace talks, known as the Inter-Congolese Dialogue, were held in Sun City,
South Africa, between February and April 2002. (16)
The International Covenant on Economic, Social and Cultural Rights (ICESCR) and
the African Charter on Human and Peoples' Rights (ACHPR), to both of which the
DRC is a state party, both contain provisions of relevance to this issue: 'All
peoples may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international
economic cooperation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of
subsistence.' ICESCR, Article 1 (2) 'Each
State Party to the present Covenant undertakes to take steps, individually and
through international assistance and cooperation, especially economic and
technical, to the maximum of its available resources, with a view to achieving
progressively the full realization of the rights recognized in the present
Covenant by all appropriate means, including particularly the adoption of
legislative measures.' ICESCR, Article 2 (1). 'All
peoples shall freely dispose of their wealth and natural resources. This right
shall be exercised in the exclusive interest of the people. In no case shall a
people be deprived of it.' ACHPR, Article 21 (1) 'States
Parties to the present Charter shall undertake to eliminate all forms of foreign
economic exploitation particularly that practised by international monopolies so
as to enable their peoples to fully benefit from the advantages derived from
their national resources.' ACHPR, Article 21 (5) In
a communication (ref: ACHPR/COMM/A044/1) of 27 May 2002, the African Commission
on Human and Peoples' Rights found the government of Nigeria to be in breach of
Article 21 of the ACHPR in connection with oil exploitation in Ogoniland. The
Commission concluded, inter alia, that the 'destructive and selfish role played
by oil development in Ogoniland, closely tied with repressive tactics of the
Nigerian government, and the lack of material benefits accruing to the local
population, may well be said to constitute a violation of Article 21'. [Emphasis
in bold added.] For further information, see www.cesr.org (17)
See, for instance, the World Bank's principles for international competitive
bidding, which the World Bank generally recommends as best practice for the
procurement of goods or services - www.worldbank.org (18)
See, for example, Nihal Jayawickrama in Corruption - A Violation of Human
Rights? at http://www.transparency.org.
In this working paper, which was presented at a conference in Sofia in June
1998, he writes: 'This commitment [under Article 2 of the ICESCR] comprises both
an "obligation of conduct" and an "obligation of result".
The obligation of conduct is "to take steps". While the full
realization of the relevant rights may be achieved progressively, over a period
of time, deliberate, concrete and targeted steps towards that goal must be taken
by the government. The obligation of result is to take steps "with a view
to achieving progressively the full realization of the rights recognized"
in the covenant. The concept of progressive realization [of economic, social and
cultural rights], while being sufficiently flexible to reflect the realities of
the real world and the difficulties involved for any country in ensuring the
full realization of all the rights in the shortest possible time, nevertheless
imposes a clear obligation to move as expeditiously and effectively as possible
towards that goal, utilizing the maximum resources available to that country.
Corruption runs counter to both obligations.' (19)
The Bakwanga Mining Company -- Bakwanga is the former name of the town of
Mbuji-Mayi. (20)
This was the figure given by a senior MIBA official interviewed by Amnesty
International in October 2001. (21)
Société congolaise d'Economie Mixte par Action à Responsabilité Limitée. (22)
In an advertisement for MIBA carried in a supplement of Jeune Afrique
L'intelligent in March 2002, MIBA claim credit for 'l'organisation de
l'enseignement maternel, primaire et secondaire technique de qualité qui
attirent autant les parents que les élèves' (the organisation of quality
nursery, primary and secondary education which attracts parents just as much as
pupils). However, some local residents claim that insufficient funds are made
available to ensure the proper daily functioning of these institutions. In
Mbuji-Mayi it is estimated that only 13% of girls attend school, while up to
600,000 children in the Mbuji-Mayi basin are estimated to be illiterate. (23)
The River Lubilanji flows through part of the polygone concession, a few hundred
metres within the official perimeter of the polygone. However, the river itself
appears to be generally regarded by the illegal miners, and indeed often by the
MIBA guards themselves, as forming one of the de facto boundaries of the
concession. Miners therefore consider that they do not put themselves in an
illegal position until they have crossed this river and generally MIBA guards do
not patrol the far side of the river, although there have been instances when
guards have pursued illegal miners across the river and shot at them. The
boundaries of the concessions are further blurred by the fact that some small
villages are actually located wholly or partially within the concessions. During
their visit to the polygone Amnesty International delegates saw several local
villagers making their way through parts of the concession; some were also
tending to crops there. (24)
However, with the frontlines in the conflict currently some distance away from
Mbuji-Mayi, the immediate threat to the security of the MIBA concessions comes
not from the armed opposition, but from illegal civilian miners. (25)
On 13 September 2002 a ceremony was held at Mbuji-Mayi's airport to mark the
supposedly imminent withdrawal of Zimbabwean troops from the DRC, following the
signing of accords between the DRC government and the governments of Rwanda and
Uganda as part of an ongoing peace process. However, at the end of September
2002 there continued to be a Zimbabwean military presence in Mbuji-Mayi. (26)
A South African company called Intervid is reportedly assisting MIBA in
developing and expanding its electronic surveillance systems. Another contract
to assist in the guarding of MIBA's concessions has reportedly been signed with
a Belgian company, but the name of the company is not currently known to Amnesty
International. (27)
These principles of law enforcement are discussed in more detail in the section
entitled Training MIBA's guards beginning on page 20 below. (28)
These illegal forays into the concessions are not generally conducted in haste.
Illegal miners will often spend several hours at a time in the concessions,
particularly at night, to maximize their gains as much as possible. It would be
more difficult for them to spend so much time in the concessions without being
detected, if they did not come to an arrangement with the guards. In this way,
these illegal forays can take on something of the character of official mining
shifts. (29)
Interview with a church official, October 2001 (30) See the section beginning on page 20 below entitled Training MIBA's guards for a fuller discussion of relevant law enforcement stan |
