Transparency Key to Making Mineral Certification Work

A recently published Open Letter from Congolese and international academic and civil society leaders rightly focussed attention on the difficulties facing artisanal mining communities in eastern Democratic Republic of Congo. These communities struggle with the presence of armed groups and public security forces, the governance demands of international actors, and the harsh realities of trying to market the minerals they scratch out from the earth.

While the letter correctly identified the challenges, it fell far short in its analysis of the best way for the international community to support those working in these artisanal mining communities. The authors, like a number of other critics, have laid considerable blame at the feet of Section 1502 of the US Dodd-Frank legislation, a provision that requires US listed companies to report on their due diligence efforts to keep conflict minerals out of their supply chains. They argue that despite its good intentions, the provision has driven investors away from a country desperate for economic development. Some have even gone as far as saying that the law has been detrimental to peace and security in DRC.

Section 1502 was never meant to be a silver bullet. The legislation was introduced and welcomed as a key measure designed to prevent armed groups from self-financing through the mineral trade. In this respect, the law has succeeded in positively influencing the regional security situation. In the four years since the legislation was introduced, armed groups have significantly loosened their grip on the production and marketing of coltan, tin and tungsten.  While it is true that, in the short term, Section 1502 has scared away investors, it created important opportunities that have yet to be capitalized upon.

Dodd Frank was passed into law after 11 countries of the Great Lakes had signed a regional Pact on Peace, Security and Development, and agreed to a legally-binding Protocol on the Illegal Exploitation on Natural Resources. These predate Dodd Frank.  Section 1502 created the impetus to move from diplomacy and legal frameworks to action: the International Conference on the Great Lakes (ICGLR) designed a series of tools to curb the illegal exploitation and trade of high-value natural resources, including a Regional Certification Mechanism (RCM) for tin, tungsten, tantalum and gold.  Furthermore, it was largely due to the pressures of Section 1502 that DRC, Rwanda and Burundi have adopted the Regional Certification Mechanism into law, a development which should be followed in a number of other countries.

Operationalizing the ICGLR’s Regional Certification Mechanism will not be easy.  Governments, companies, and civil society organizations in the region face many challenges as they build the systems, tools and networks necessary to create an operational system.  At the same time, all those involved face tremendous pressure to move as quickly as possible in order to secure global market share for the region’s minerals.  

Governments and civil society are right to be concerned by the slow pace of progress in ensuring the Regional Certification Mechanism becomes a reality. They are also right to revisit and to call for improvements to the dominant chain of custody model (called a ‘closed-pipe’ system) that is currently used in the 3T sector and its impact on the local economy.  However, we need to understand that certification is the means, and not the end. The broader goal of this mechanism is transparency, compliance and alignment with regional and international certification standards, and good governance.  Amid this rush to issue certificates, it is civil society’s responsibility to insist upon a process that is integral and fully complies with the standards that have become law within the Great Lakes member states.  Civil society pressure should be focussed on insistence of the publication of the complete results of mine site inspections, third party audits, traceability data as well as the evaluation of traceability systems. Civil society actors should also be questioning the claims of private sector actors who maintain they are fully implementing the voluntary OECD Due Diligence Guidance but fail to publish annual reports on supply chain due diligence as is expected of the Guidance. 

The publication of this information and data is integral to the ICGLR’s Regional Certification Mechanism, and fundamental to bringing about the transparency that will guarantee compliance at both the country and the regional levels. It is important to build upon the considerable progress that has been made, and ensure that we can continue to leverage the legal tools at our disposal.  These tools are essential for the continued efforts to bring public scrutiny onto resource flows and conflict financing within the Great Lakes region.