Rights in the DRC: What’s getting in the way?

At the Rio Earth Summit of 1992, the Forest Principles sent a clear message to governments: to preserve forests better, involve the people living in and around them in their management. Since then, numerous countries across the globe have put reforms in place that attempt to do just that.

But putting these changes into practice is often a different story.

In the Democratic Republic of Congo (DRC), the Forest Code of 2002 clearly guarantees the rights of communities to their lands and livelihoods. But in a recent validation workshop for a Center for International Forestry Research (CIFOR) study on the topic, stakeholders said that these provisions are not consistently enforced, which limits forest-adjacent communities from exercising their rights, and disproportionately affects the most vulnerable.

It’s a timely investigation, because the country is in the midst of a new forest tenure reform process involving changes to the 2002 Code. “So, if there are good follow-up actions, there could actually be a window of opportunity to put the results of the study into the new regulations,” says Floribert Nyamwoga, a CIFOR consultant and member of the research team, “which would be marvelous.”

COLONIAL CONCEPTS, NEW CHALLENGES

One key hindrance to implementation, said stakeholders in the workshop, is the ‘colonial hangover’ within current legislation. In the 20th century up until 1960, when the DRC was a Belgian colony, the administration termed ‘indigenous’ all land that communities were visibly occupying and using at that time, and declared all other land ‘vacant’ – and thus available for colonial use and ownership.

To traditional authorities this has never made sense, because all the lands and forests in the country are under customary occupation. As such, the study recommends that legislators rid the Forest Code of these kinds of concepts and replace them with terms that represent reality, taking into account indigenous peoples’ relationships with forests more fully. As CIFOR Principal Scientist and Global Comparative Study on Forest Tenure Reform research team leader Esther Mwangi highlights, it’s crucial that the revisions to the Code involve the customary tenure system and role of customary authorities, prevalent across time and space in the DRC. “This is the time to ensure that there is a level of congruence between on ground realities and practices and what is in statute,” she says.

News

For DR Congo’s forests, legislation is only part of the solution

A capacity gap was also identified within the forest administration. “The legislation is actually very strong at the national level,” says Nyamwoga. “But in the field where the forest is managed, the presence of the administration is very, very low.” Most stakeholders on the ground are not even aware of the provisions of the law, or the tools and instruments that are in place to regulate the sector. “And in those circumstances, most people act with good faith. They try to do what they think is best. But most of the time it’s not the way things should have been handled, according to the law.”

In this context, the researchers recommend that partner organizations supporting the DRC forest sector put money toward capacity-building for local forest actors. They cite the successful example of a recent EU-funded training session, which resulted in provincial governments actually implementing parts of the Forest Code that had hitherto been ignored.

“When we saw the impact of that activity, we concluded that those kinds of opportunities should be multiplied.” says Nyamwoga. “And the state itself cannot finance such initiatives, so we need the partners to pick it up. Otherwise, we can go on and on discussing laws and regulations, and build the best laws on forests, but then in the end we are not going to be able to implement them, and the communities which they are supposed to protect are not going to benefit from that protection.”

Mwangi adds that implementation gaps such as these are common in many of the sites where the researchers are investigating forest tenure reform internationally, and cautions that challenges such as these “can be decisive in whether or not tenure rights for communities that are granted by statute are secured.”

Issues were also identified with the moratorium on new forest concessions, which was put in place over 10 years ago. While it seems a great idea in terms of protecting forests, so far its enforcement has been ad hoc – and has not always taken into account the impacts on forest-adjacent communities’ livelihoods.

“There are places where the local economy was exclusively revolving around the forest concessions which were given to private industrial loggers,” describes Nyamwoga. When loggers pulled out due to the moratorium, no substitutes or support were given to the local economy, “and those places are now literally dying out,.” In some areas, the only boat that came regularly to bring provisions and medicines, and the only school and health infrastructures that were functioning, belonged to the logging companies. “Since they pulled out, there’s been no other way to reach those places, and all the infrastructure has stopped working.”

Stakeholders agreed that a new compromise is needed: an intermediate solution that allows some parts of the forests to be used for economic development to meet local and regional needs. “There is a discussion at the moment on whether we maintain the moratorium or not, but there is no discussion of what new arrangement we can reach,” says Nyamwoga. “So we think that pursuing dialogue on that specific issue could encourage all the parties to revise their positions and find new working arrangements,” he recommends.

WHOSE RULES, WHOSE RIGHTS?

Harmonization between different sectors was also identified as a challenge. Beyond the Forest Code, there are many other laws – such as on conservation, agriculture and mining – that impact what goes on in forested areas, and some of these are contradictory. For example, if someone engages in mining activity in a forest, the mining law will apply, and the way that it handles community rights in the area is very different to the mandates of the Forest Code. “So communities are not guaranteed protection by the provisions contained in the forest law,” says Nyamwoga.

News

Decaying Belgian Congo–era maps reveal secrets of valuable African tree

Thus, another key conclusion of the research was to create space for aligning the provisions of the different laws that can affect forest communities and their livelihoods, in an attempt to preserve those rights that are already guaranteed in the Code and expand them to other sectoral activities.

“And that’s very, very, very challenging,” Nyamwoga emphasizes, “because there are so many contradictions between some of the positions.” He says such a space will only be created via lobbying and financing from national and international non-state actors, and warns that “if we don’t do it, there will be problems in forest governance. With six laws applying on the same area, with no land-use planning at the national or the local level, confusion will continue to reign.”

According to Mwangi, this issue of conflicting policy and legislation is common across multiple settings in Africa, Asia and Latin America. “Often a land use planning policy can help rationalize the confusion and conflict,” she says, “but in the end, a coordination mechanism adopted as a matter of practice between forestry and other relevant agencies would be useful.”

Given how “sensitive and delicate” the topic of forestry is at present in the DRC, Nyamwoga says the workshop was a rare opportunity to get multiple stakeholders in the same room. Surprisingly, he says, all the stakeholders involved agreed on why the laws were not being implemented in the field. “We thought that the government was going to take a defensive approach, but it didn’t.” High-ranking officials in the Ministry of Forestry acknowledged the dysfunction and corruption within the forest administration, and confirmed it as one of the most important problems.

So, despite the multitude of challenges facing the DRC forestry sector and forest-adjacent communities at present, Nyamwoga remains hopeful that now could well be the time for change.

This article is part of a two-piece series on land tenure in the DRC. Read the other story here: Rights in the DRC: Whose rights matter?