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Absence or shortcoming of the preliminary process of identifying any existing tenure rights over the land (customary rights): the obligatory inquiry procedure in relation to existing tenure rights over the land concerned by the concession application is not or is insufficiently applied and, as a result, statutory land law grants concessions on land occupied under customary rights, and there is therefore an overlap in land use, or rather conflicts over land tenure rights. (Mpoyi, 2013, GIZ/KfW, 2016)
No dialogue between the administrations, lack of appreciation and understanding of the legal framework: overlaps in land management rights is also the result of contradictory administrative actions conducted by the various ministries, notably the Ministry of Mining, the Ministry of Environment, and, to a lesser extent, the Ministry of Agriculture. Furthermore, the land administration and the local authorities (mayors, administrators, heads of chiefdoms, sectors, groups, localities, villages) do not apply the provisions of land law in a uniform, consistent manner. These authorities may therefore “regularise” unlawful situations or simply unknowingly allocate rights over plots of land and issue “titles” that are not legally recognised. Populations also engage in land transactions according to procedures that are sometimes not recognised by law or tradition. (Mpoyi, 2013)
As the state has sole ownership over the soil and forest resources, natural and legal persons can only be granted the right to use the soil by way of a land concession and/or the right to use forest resources by way of a forest concession.
The law provides for two types of land concessions: concessions in perpetuity, which can only be granted to natural persons of Congolese nationality (Art. 80 Law n°73-021) and ordinary concessions, which can be granted to natural or legal persons of Congolese or foreign nationality, for a fixed period, which is normally 25 years. Natural or planted forests located on a land concession belong to the concession holder, which therefore, also has management and exploitation rights of those resources (art. 8 of the Forest Code).
The Forest Code also stipulates 3 forest categories: classified forests, protected forests and permanent production forests. Classified forests fall under the state public domain. They have an ecological purpose and must account for at least 15% of the DRC’s total territory. Protected forests and permanent production forests form part of the state private domain.
Permanent production forests are designated for the allocation of logging concessions. They are established by ministerial order once they have been subjected to a public survey process, the aim being to determine any existing rights and to agree on compensation if applicable (the law stipulates that payment of compensation renders the forest free of all rights) (Art. 23 and 84 of the Forest Code).
Rights to access forest resources can also be granted in protected forests, notably to local communities and artisanal loggers. Local community forest concessions are allocated free of charge by order of the provincial governor, following a regulated procedure (application, identification of local community making the application, preliminary inquiry, public disclosure). Artisanal forest units are created by order of the provincial governor concerned, following a public inquiry.
The management and harvesting of forests by private persons is therefore allowed by way of a forest concession or a land concession.
Customary land rights
Congolese law loosely recognises customary land rights (not written). The law actually stipulates that “lands occupied by local communities are those where these communities live, farm and operate in some way (individual or collective) in compliance with local customs and usage” (Art. 388 of Law n°73-021). It therefore acknowledges the customary right to live on and work the land.
Furthermore, before formal rights over any land are granted through a concession, the law stipulates that an inquiry must be carried out to determine the nature and scope of any potential third party rights over the requested land (Art. 193 of Law n°73-021).
However, the law leaves it to the regulations to define a more detailed legal framework applicable to the duly acquired tenure rights over the customary land (Art. 389 of Law n°73-021). The presidential order provided for by the law was never adopted, which created a legal loophole and land tenure insecurity for all communities occupying land under customary rights.
This means that in practice, local community land continues “to be governed by local customs and managed by customary authorities across more than 90% of the country’s surface area.” (Koné, 2017). Land and forest concessions can also be formally allocated to local communities.
Understanding and mapping of land rights
In 2008, the DRC government began mapping out the country’s forest areas. The National Steering Committee for Forest Zoning (CNPZF) was set up by way of a ministerial order. This committee is a multi-stakeholder, cross-sectoral structure that unites all players involved in the management of land and natural resources. The government put together a map for the allocation of its forest areas, which was intended as a dynamic tool to be used to initiate a dialogue between the stakeholders and to act as a vehicle for the gradual implementation of the country’s new Forest Code. This zoning plan’s objective is to offer a clear, negotiated framework for access to spaces and resources. As well as creating maps and databases, the operation also, and above all, involves leading a dynamic process of analyses and discussions in relation to land use planning and the allocation of resources.
As the state has sole ownership over the land and forest resources, natural and legal persons can only be granted the right to use the land by way of a land concession and/or the right to use forest resources by way of a forest concession. The law provides for two types of land concessions: concessions in perpetuity, which can only be granted to natural persons of Congolese nationality (Art. 80 Law n°73-021) and ordinary concessions, which can be granted to natural or legal persons of Congolese or foreign nationality, for a fixed period, which is normally 25 years. Natural or planted forests located on a land concession belong to the concession holder, which therefore, also has management and exploitation rights of those resources (art. 8 of the Forest Code).
The Forest Code also stipulates 3 forest categories: classified forests, protected forests and permanent production forests. Classified forests fall under the state public domain. They have an ecological purpose and must account for at least 15% of the DRC’s total territory. Protected forests and permanent production forests form part of the state private domain. Permanent production forests are designated for the allocation of logging concessions. They are established by ministerial order once they have been subjected to a public survey process, the aim being to determine any existing rights and to agree on compensation if applicable (the law stipulates that payment of compensation renders the forest free of all rights) (Art. 23 and 84 of the Forest Code). Rights to access forest resources can also be granted in protected forests, notably to local communities and artisanal loggers. Local community forest concessions are allocated free of charge by order of the provincial governor, following a regulated procedure (application, identification of local community making the application, preliminary inquiry, public disclosure). Artisanal forest units are created by order of the provincial governor concerned, following a public inquiry. The management and harvesting of forests by private persons is therefore allowed by way of a forest concession or a land concession.
Congolese law loosely recognises customary land rights (not written). The law actually stipulates that “lands occupied by local communities are those where these communities live, farm and operate in some way (individual or collective) in compliance with local customs and usage” (Art. 388 of Law n°73-021). It therefore acknowledges the customary right to live on and work the land. Furthermore, before formal rights over any land are granted through a concession, the law stipulates that an inquiry must be carried out to determine the nature and scope of any potential third party rights over the requested land (Art. 193 of Law n°73-021). However, the law leaves it to the regulations to define a more detailed legal framework applicable to the duly acquired tenure rights over the customary land (Art. 389 of Law n°73-021). The presidential order provided for by the law was never adopted, which created a legal loophole and land tenure insecurity for all communities occupying land under customary rights. This means that in practice, local community land continues “to be governed by local customs and managed by customary authorities across more than 90% of the country’s surface area.” (Koné, 2017). Land and forest concessions can also be formally allocated to local communities.
Understanding and mapping of land rights In 2008, the DRC government began mapping out the country’s forest areas. The National Steering Committee for Forest Zoning (CNPZF) was set up by way of a ministerial order. This committee is a multi-stakeholder, cross-sectoral structure that unites all players involved in the management of land and natural resources. The government put together a map for the allocation of its forest areas, which was intended as a dynamic tool to be used to initiate a dialogue between the stakeholders and to act as a vehicle for the gradual implementation of the country’s new Forest Code. This zoning plan’s objective is to offer a clear, negotiated framework for access to spaces and resources. As well as creating maps and databases, the operation also, and above all, involves leading a dynamic process of analyses and discussions in relation to land use planning and the allocation of resources.
Verify that basic information about the concession align.
The Forest Code primarily provides for the allocation of industrial forest concessions and local community forest concessions. A subsequent order also provides for the creation and allocation of artisanal forest units (unités forestières artisanales – ‘UFA’). Another order also provides for the possibility of harvesting natural or planted wood located on land concessions belonging to private individuals.
Conversion of old forest titles
The Forest Code granted holders of old forest titles (referred to as supply guarantees or letters of intent) one year to convert them into forest concessions (Art. 155 of the Forest Code), with effect from the Code’s entry into force in 2002. This time frame was then extended, and in 2005, a decree was issued stipulating the modalities for converting these old forest titles. The applicable procedure includes the submission of a request, followed by a verification of the application and the legal validity of the titles. A verification report is drawn up by the forest administration and approved by an interministerial commission (Art. 9 and 10 of Decree n°05/116).
Following a favourable recommendation from the commission, the minister and applicant sign the forest concession contract for a fixed duration of 25 years. The concessionaire then has four years to draw up a forest management plan and have it approved. If the concessionaire fails to do so, the contract is automatically terminated (Art. 19 of Decree n°05/116).
Initiated back in 2002, the process of converting old forest titles fell way behind schedule. It appears that it was finally concluded in 2014, recognised by way of a technical note confirming the completion of the process of converting old forest titles into forest concession contracts by the Congolese government.
Moratorium on new (industrial) forest concessions
The allocation of new industrial forest concessions was suspended by ministerial order in 2002 (Order n°CAB/MIN/AF.F-E.T./194/MAS/02). This decision was extended in 2005 (Decree n°05/116 of 24 October 2005). Three conditions must be met before this moratorium can be lifted: (1) the new forest allocation tender procedures are published, (2) the final results of the conversion process are published and all non-converted titles are terminated and (3) a three-year geographical plan for future allocations is drawn up based on a consultation process.
The moratorium must also be lifted by way of a decree (Art. 23 of Decree n°05/116).
It appears that:
Consequently, it is illegal for any new forest concessions to be allocated outside of the old forest title conversion process.
Allocation procedure
Despite the moratorium on new concessions, legislation provides a detailed explanation of the normal procedure for allocating forest concessions, which is executed by way of a tender procedure (Art. 83 of the Forest Code). In exceptional cases, the law allows for the allocation of forests at the discretion of the State, however this does not apply to forests intended for logging operations, valid reasons being the promotion of environmental services against payment, the promotion of eco-tourism or bio-prospecting objectives, and the conservation of biological diversity (Art. 38 of Decree n°08/09, as amended by Art. 1 of Decree n°011/25). Furthermore, in order to obtain a forest concession, natural persons must be domiciled in the DRC and legal persons must have their head office in the DRC. The entity must also post a bond or obtain a guarantee from a financial institution, the value of which is based on the value or area of the forest concession (Art. 82 of the Forest Code).
Preliminary public inquiry
Before a concession can be allocated, a public inquiry must be carried out with the aim of determining “the nature and scope of any rights that third parties might have over the forest to be granted for the purposes of compensation, if any” (Art. 84 of the Forest Code). The key stages are as follows:
Public tender procedure
The forest administration then carries out a valuation of the forest concession and sets the reserve price before putting it out to public tender (Art. 85 of the Forest Code). A tender submission file is drawn up and approved by ministerial order. It specifies the tender conditions and the operating rules. The tender procedure must be carried out in compliance with the formalities stipulated by the regulations (Decree n°08/09). The key stages are as follows:
Concession contracts
Concession contracts cannot exceed 25 years, however they are renewable.
Artisanal logging
There is a special regime for artisanal forest units, the creation and allocation of which are governed at provincial level in line with a process that is identical (mutatis mutandis) to the allocation of forest concessions (Ministerial Order n°85/CAB). The moratorium on concession allocation does not apply to artisanal concessions. Artisanal loggers must obtain a profession accreditation, issued by the provincial governor and valid for 5 years.
Local community forest concessions
The law also states that local communities may obtain forest concession on forests legally owned by virtue of custom as a (Art. 22 of the Forest Code). A request must be submitted to the provincial governor by the community representative(s) and must include a participatory map, the approximate surface area of the forest and the minutes from a community committee meeting (Art. 4 of Decree n°14/018). The forest administration then proceeds with a preliminary inquiry with a view to verifying the requesting community’s rights (Art. 9 of Decree n°14/018).
The provincial governor makes a reasoned decision to accept or reject the request and, if applicable, issues an order confirming the free allocation of a perpetual forest concession to the local community (Art. 15 of Decree n°14/018).
Category 1 artisanal loggers can access the timber resources covered by community concessions through a written agreement signed with the local community concerned.
The specifications (Cahier des charges) attached to the concession contract are not signed (Expert consultation, 2019);
Specifications (Cahier des charges) does not contain a social clause in compliance with the regulatory template, duly signed by the logging company and the local communities and/or indigenous populations (Global Witness, 2015 and 2018)
Verify that basic information about the concession align
The law stipulates that all forest management and logging activities must be conducted in accordance with a forest management plan drawn up in advance (Art. 71 of the Forest Code).
This forest management plan must be drawn up under the responsibility of the concessionaire and approved by the provincial governor (Art. 76 of the Forest Code).
The concessionaire is responsible for drawing up the forest management plan within the first four years of signing the concession contract. The concessionaire can get an additional 12 months (maximum) by reasoned request upon the decision of the Minister (Art. 5 of Order n°34/CAB/MIN/EDD).
If at the end of this time frame the forest management plan has not been submitted to the forest administration, the harvest permits are suspended. In contrast, for old forest titles converted into concessions, the regulations stipulate the systematic termination of the concession contract if the forest management plan is not approved within 4 years (Art. 19 of Decree n°05/116).
A forest management plan can apply to one forest concession or several continuous forest concessions that fall under the responsibility of the same concessionaire (Art. 7 of Order n°34/CAB/MIN/EDD).
A series of operational guides provide detailed information and explanations relating to the techniques and templates for the different management documents. They include both illustrative and prescriptive information. They also provide details on the procedures for having these documents validated by the forest administration.
Drawing up the forest management plan
The forest management plan must be drawn up in line with the operational guides and prescriptive documents published by the forest administration.
Forest management plans are based on:
• A sampling plan, which must be approved in advance by the forest administration (certificate of conformity);
• A forest management inventory report, the activities of which must be verified by the forest administration (certificate of conformity);
• A socio-economic assessment report, also validated by the forest administration (certificate of conformity).
The process is of a participatory nature and must include consultation meetings with the local communities (Art. 11 of Order n°34/CAB/MIN/EDD). Minutes of these meetings must be drawn up, outlining the observations of local communities in terms of the forest management plan and the zoning and allocation of land.
The concessionaire is responsible for updating the forest administration regarding the progress of the forest management plan twice a year (Art. 10 of Order n°34/CAB/MIN/EDD).
Following this process, a validation committee representing various administrative departments is created. This committee approves the forest management plans, issues the certificate of conformity and sends it all to the provincial governor. The provincial governor then issues an order for the approval of the forest management plan.
Management programmes and annual operations plans
The concession area is divided into five-year management blocks, which are then themselves divided into annual allowable cuts (AAC). The five-year management blocks are subject to management programmes, which schedule the activities for the five years, apart for the period directly preceding the adoption of the forest management plan. Indeed, for the first four years following the adoption of the concession contract, the management programme acts as the provisional forest management plan (Art. 20 of order n°34/CAB/MIN/EDD). Management programmes are recognised by a “validity certificate” issued by the forest administration.
Each annual allowable cut is also accompanied by an annual operations plan. This covers the period from January to December of the relevant year. It is drawn up based on the results of the annual allowable cut harvesting inventory, in accordance with the provisions of the forest management plan and the current five-year management programme. An industrial harvest permit is issued once the annual operations plan has been validated
Monitoring of forest management instructions
Whilst the forest management plan is being implemented, the concessionaire prepares an annual logging operations report, in line with the template produced by the forest administration (Art. 65 of Order n°34/CAB/MIN/EDD). The concessionaire also draws up a five-year management report every five years.
The forest administration must ensure that the forest management plan is checked, monitored and evaluated (Art. 76 of the Forest Code).
Artisanal forest units
The process for drawing up and implementing a forest management plan for an artisanal forest unit or unité forestière artisanale (UFA) is normally similar but adjusted slightly (mutatis mutandis), overseen by the provincial forest administration (Art. 10 of Ministerial Order n°85/CAB). The regulations do not provide any specific details regarding which parts can be adjusted and how, or which remain unchanged.
Community forest concessions
Community concessions are managed and operated in line with a simplified management programme prepared by the local community with the support of the local forest administration, in compliance with an operational guide produced by the forest administration (Art. 22 of Order n°25/CAB). As well as dividing the concession into specific areas, the simplified management programme notably provides a schedule based on a simplified multi-resource inventory, a socio-economic survey report and a description of the applicable management measures in line with the practices and customs of the communities (Art. 23 of Order n°25/CAB). If one of the areas is allocated to logging operations, the simplified management programme stipulates the quantities or volumes that can be harvested annually over a maximum period of 5 years (Art. 24 of Order n°25/CAB). The simplified management programme is approved by the local forest department. It is subject to a mandatory five-year evaluation.
Logging operations are carried out without a harvest permit, before a permit is issued or after a permit has been revoked (OI-FLEG/OGF, n°1-2013, n°2-2014, n°5-2015, n°6-2016, n°7-2017, n°9-2017, n°12-2019)
Harvest permits for industrial concessions are allocated without an annual operations plan; (OI-FLEG/OGF, n°7-2017, n°11-2019)
The annual allowable cut (industrial concession) is harvested beyond its statutory period (maximum three years) (Based on expert consultation, 2019).
If applicable, an official document issued by the forest administration extending the validity period of the harvest permit (extension of two years maximum for a total period of three years).
Extension of two years maximum for a total period of three years.
• Artisanal permits are awarded to entities which are not designated by the regulation as allowed recipient of artisanal permits (for instance foreign national or enterprises up to 2016); (Global Witness, 2015, OI-FLEG/REM, 2013)
• Fraudulent use of artisanal permits (allocated to a different entity or for a different area); (Based on expert consultation, 2019)
• Artisanal operators are not registered with the designated local authorities (holding their accreditation as artisanal operators); (Global Witness, 2015, OI-FLEG/OGF, n°2-2014, n°3-2014, n°8-2017, n°9-2017, n°10-2017, n°13-2019)
• Artisanal permits are not delivered by the designated competent authority (Provinces Governors); (Global Witness, 2015)
• Single artisanal operators are granted more annual permits than the maximum legally allowed (2 permits). (Global Witness, 2015)
Artisanal logging, local community concessions, private timber
Artisanal loggers must obtain an accreditation issued by the provincial governor. Category 1 loggers (areas under 50 hectares) must sign a written agreement with a local community before obtaining a category 1 harvest permit. For category 2 loggers (areas between 100 and 500 hectares), once an annual allowable cut has been allocated within an artisanal forest unit, the logger must obtain a category 2 artisanal harvest permit, covering the area defined in the annual allowable cut allocation certificate (Art. 24 of Ministerial Order n°84/CAB). Artisanal harvest permits are valid for 1 year and are issued by the provincial governor.
If the local communities are carrying out the logging operations themselves within their concession, they must also obtain a harvest permit. If they are not, they must sign a written agreement with an artisanal logger, who must in turn have their own harvest permit (see above).
To harvest wood located within a private land concession, a harvest permit must also be obtained. It is valid for one year and cannot cover more than 1,000 hectares. It specifies the authorised harvestable volume and can be renewed once. In contrast, the harvesting of wood originating from reforestation operations within land concessions belonging to private individuals is subject to a simple declaration to the forest administration (Art. 26 to 29 of Ministerial Order n°84/CAB). Reforestation is defined in the Forest Code as the planting of forest tree species within a forest area (Art. 1 of the Forest Code).
Area tax
The Forest Code only stipulates one tax applicable to logging operators with an industrial forest concession: area tax (Art. 121 of the Forest Code). This tax is based on a floor annual rate fixed by the administration, plus the additional financial offer proposed by the concessionaire for concessions allocated through public tender procedures. “Given that no tender procedure has yet been established, this increase does not yet exist in practice” (OI-FLEG, 2013). Old forest titles converted into concessions are therefore subjected to the floor rate.
The area tax is charged only for the productive area of the forest concession (Art. 2 of order n°008/CAB).
The area tax is paid annually.
Felling tax
The Forest Code also stipulates a felling tax. The felling tax rate is determined based on the value of each species and the areas from which they are taken. It is calculated based on the information provided by the logging operators themselves.
This tax also applies to logging operations taking place outside of a forest concession (which de facto means artisanal forest units and trees on private land concessions) (Art. 102 and 120 of the Forest Code).
The law also stipulates a reforestation tax, normally imposed on the logging operator and also calculated based on the volumes actually harvested.
The issuance of accreditations and permits is also subject to payment of specific fees.
There is no information available on the issuance of permits for the purchase and sale of timber, or on the payment of the fees associated with issuing these permits. The precautionary principle has been applied as no evidence is available to state low risk for legal compliance related to value-added taxes and other slaes taxes. Thus, the risk is considered specified.
Currently we have not identified potential mitigation measures for the risk identified. Any input on possible mitigation measures will be appreciated.
Any entity purchasing and selling wood in the DRC shall pays VAT. VAT is not applicable for export.
Between 2010 and 2021, the OI-FLEG (NGOs Ressource Extraction Monitoring until 2013 and OGF since then) visited many industrial and artisanal logging sites and reported systematic breaches of the regulations (OI-FLEG/REM, 2013, Global Witness, 2015, OI-FLEF/OGF, 2013 to 2021).
The OI-FLEG reports have notably highlighted cases of:
The harvesting of wood species beyond the authorised volume is very common. In one of the most well-known cases, the observer reported that a logging company had exceeded its authorised volumes under two concessions in a “broad and almost systematic” manner, with an excess of 12,000 m3 recorded in the first few months of 2011. One of the concessions involved had nevertheless been able to obtain a Controlled Wood certificate from the FSC, which was supposed to guarantee the legality of the wood (Greenpeace Africa, 2013).
An examination carried out by the OI-FLEG of a sample of data across 80 licensed logging operations revealed that the harvested volumes actually recorded exceeded the authorised volumes by 19%, accounting for an excess of non-authorised volumes of 39,000 m3. The majority of these excess volumes were three leading commercial species: Sapele, Sipo and Iroko.
Relevant for artisanal forest units (UFA).
Check the authorised species in the permit
For private natural forests.
Check the authorised species in the permit.
Consult relevant stakeholders to obtain information on the implementation of logging standards in the forest concerned.
For industrial forest concessions
For artisanal forest units (UFA)
Check that
If applicable
Harvesting regulatons shall be complied with
The Forest Code stipulates that “forest products must be harvested in compliance with the clauses of the specifications (cahier des charges) attached to the contract or the provisions stipulated in the permit” (Art. 107). The law recognises two distinct forms of logging: industrial logging and artisanal logging.
A number of general standards are laid down by Order n°84/CAB, which reiterates that all timber harvesting operations “are subject to the observation of the principles of sustainable, environmentally sound, economically viable, technically efficient and socially just management.” The required actions notably involve:
The technical details of the logging standards to be implemented by all industrial concession-holders in the DRC are specified in the Standards for Reduced Impact Logging (RIL), which amalgamate legal obligations and recommendations for loggers.
The obligations relating to logging operations are as follows:
The specifications (cahier des charges) attached to the concession contract also includes a list of species that cannot be harvested.
Logging operations, including felling, may be outsourced by the forest concessionaire, subject to the forest administration being informed. For felling in particular, outsourcing must be approved by the administration.
For local community forest concessions, timber may only be produced using specific equipment: a chainsaw, a crosscut saw and a winch. The logging operations may be carried out by the local community or by artisanal loggers, in line with the simplified management plan (which must identify the position of the harvestable trees and the volumes thereof in advance). The felled trees must then be recorded on a logging sheet provided by the forest administration.
Species protected on a national scale.
There is a risk of illegal harvesting of protected species in the DRC. There are numerous reports documenting cases of illegal harvesting of Afrormosia and Mukula, often also referred to as “African padauk”.
Mukula is growing in the South of the country and is therefore exported through neighbouring Zambia. CITES listing of Pterocarpus tinctorius is only dating back from 2019. EIA has reported about on-and-off harvest bans in the Katanga region and harvesting taking place outside of designated concession. A process was designed in 2019 to sell existing stockpiles of logged Mukula through Zambia, with an existing risk of not being effectively monitored and being used to export freshly logged timber (EIA, 2019).
Afrormosia; the issues uncovered concern, on the one hand, the issuance of irregular harvest permits (Global Witness, 2015, Greenpeace, 2015) and the use of fraudulent harvest permits (Global Witness, 2015). Global Witness has also documented concession-holders buying Afrormosia from irregular artisanal loggers (Global Witness, 2015). Significant work has been conducted with the assistance of international programmes (ITTO, FAO-FLEGT) to determine strict measures to be adhered to when issuing Afrormosia harvest permits and CITES permits (Congolese Institute for Nature Conservation, 2014). However, this study conducted for the DRC CITES body in 2014 also revealed a lack of coordination between the administrations in charge of monitoring logging operations in the DRC, which prompted the CITES management body to carry out a legality check for all P. elata export permits, which falls outside of its physical and technical capacities. The administrative issues revealed notably concern the verification of administrative permit procedures, volume checks, the order of the stages in the export control process and limiting the validity of the permits to 6 months, leading in some cases to the cancellation and replacement of expired permits “with all the risks of inconsistencies and potential fraud that that involves.”
A new report published in 2018 specified the different stages and players involved in the process facilitating the allocation of harvestable and export quotas. There is no information in the public domain on the efficiency of these new procedures and their effective application. No information is available stating that those issues are no longer present.
Species protected on a national scale
The Forest Code broadly prohibits the felling of protected species, a list of which has been established in the applicable regulations (Art. 49 and 50).
Ministerial Order n°CAB/MIN/AF.F-E.T/276/2002 specifies the applicable logging conditions and the list of protected species. Three lists are attached to the order, duplicating the annexes adopted by the Convention on International Trade of Endangered Species (CITES). A fourth annex is expected to be drawn up regarding forest species present in the Congolese forest domain but not covered by the CITES.
The main species concerned by this regulation and in high demand on the international wood market are those commonly known as rosewood (Afrormosia - Pericopsis elata and Mukula – Pterocarpus tinctorius). The harvesting of these species is permitted under industrial concessions on the basis of the harvesting inventory of the annual allowable cut, specified in the annual operations plan and the industrial harvest permit (quota established in terms of number of trees that can be harvested). Industrial forest concessions for which the forest management plan is in the process of being prepared may obtain harvestable quotas based on management inventories, which must be duly validated by the forest administration and determine an annual allowable harvest.
Sites and species protected by the forest management plan
The forest concession management plan (or the simplified management plan) determines the management rules to be implemented in terms of times and spaces, and therefore determines the areas that are protected within the forest concession, and the species that must not be harvested due to their special status. The management plan also specifies certain sites and habitats that are protected (corridors, steep inclines, water sources, etc.) protection series and conservation series.
The Forest Code also prohibits the felling of trees located 50m either side of running water and within a 100m radius of any water sources (Art. 48).
There are numerous reports documenting cases of illegal harvesting of rosewood (Afrormosia and Mukula, often also referred to as “African padauk”).
Afrormosia
The issues uncovered concern, on the one hand, the issuance of irregular harvest permits (Global Witness, 2015, Greenpeace, 2015) and the use of fraudulent harvest permits (Global Witness, 2015). Global Witness has also documented concession-holders buying Afrormosia from irregular artisanal loggers (Global Witness, 2015).
Significant work has been conducted with the assistance of international programmes (ITTO, FAO-FLEGT) to determine strict measures to be adhered to when issuing Afrormosia harvest permits and CITES permits (Congolese Institute for Nature Conservation, 2014).
However, this study conducted for the DRC CITES body in 2014 also revealed a lack of coordination between the administrations in charge of monitoring logging operations in the DRC, which prompted the CITES management body to carry out a legality check for all P. elata export permits, which falls outside of its physical and technical capacities. The administrative issues revealed notably concern the verification of administrative permit procedures, volume checks, the order of the stages in the export control process and limiting the validity of the permits to 6 months, leading in some cases to the cancellation and replacement of expired permits “with all the risks of inconsistencies and potential fraud that that involves.” A new report published in 2018 specified the different stages and players involved in the process facilitating the allocation of harvestable and export quotas. There is no information in the public domain on the efficiency of these new procedures and their effective application. No information is available stating that those issues are no longer present.
There is a risk of illegal harvesting of protected species in the DRC.
There are numerous reports documenting cases of illegal harvesting of Afrormosia and Mukula, often also referred to as “African padauk”.
Mukula
Many companies harvest forest resources despite not having produced an Environmental and Social Impact Assessment (ESIA) report approved by the competent authority. (Based on expert consultation, 2019
On the one hand, the Forest Code makes no explicit reference to environmental and social impact assessments. Forest concession management must ensure that the forest maintains its ecological functions (biological diversity, climate regulation, protection of the soil, regulation of water regimes, maintenance of water quality). The forest management plan must notably determine the potential impact of the infrastructure (roads, camps, etc.) and outline the mitigation measures. Measures to mitigate negative impacts must also be provided for when the concession directly borders a protected area. The Forest Code also provides for forest cover protection measures, notably against illicit harvesting, over-harvesting, overgrazing, fires and slash-and-burn agriculture. The deforestation of areas exposed to the risk of erosion or flooding is prohibited.
The forest concession contract indicates the logger’s obligation to combat bush fires, poaching and illegal timber harvesting (notably by checking traffic routes within the concession, implementing environmental safeguarding measures and minimising or offsetting any negative impacts the infrastructure construction works have on the environment).
For local community forest concessions, the simplified management plan indicates the specific rules stipulated for the conservation of the natural surroundings and the protection of the environment. The community must ensure that the forest reserves are replenished by promoting regeneration through the conservation of seed-bearing trees and banning deforestation and clearcutting in logging areas. The community may also carry out reforestation works and promote agroforestry. The simplified management plan must contain specific instructions on the actions to be taken to replenish the forest reserves.
On the other hand, the law on environmental protection stipulates that “any logging project that may have an impact on the environment is subjected to a prior environmental and social impact assessment (ESIA), accompanied by a relevant management plan”. This environmental and social management plan must notably specify “the impacts, the mitigation or improvement measures, the supervisory and follow-up responsibilities and their estimated cost during and after the project, the monitoring indicators, the schedule, the capacity building modalities, and the results of the public consultation procedure” (Art. 19 of Decree n°14/019). The impact assessment must be carried out by a specialist consultant. If the ESIA result is acceptable, the Congolese Environment Agency issues an environmental certificate.
After drawing up a forest management plan, forest concessionaires must produce an Environmental and Social Impact Assessment (ESIA) report that outlines all the impacts - positive or negative - of the logging operations on the natural or human environment, and describes the mitigation or compensation measures to be put in place (COMIFAC/KFW, 2015).
Finally, the discharge of any waste or substances that may alter or damage the surface water or groundwater is, as a matter of principle, prohibited and subject to restriction, declaration or authorisation. Measures are also provided for regarding the supervision of activities that could damage the soil, and the use of chemical products, pesticides and pollutants. The operational guide regarding the principles of reduced impact logging reiterates the fact that waste from logging activities must be collected, stored, destroyed or evacuated. Engines and equipment must be serviced in such a way that minimises pollution. The operator must notably collect all waste oil or diesel not fit for consumption. The operator must limit the use of toxic substances or products, take necessary precautions to prevent fuel leakages, and respect the safety distances for areas where hydrocarbons are stored and used.
Compliance with regulatory health and safety at work requirements is very poor across logging companies, unless they are part of a credible certification system that regularly audits health and safety practices. The potential risks are:
Examples of documents are: Partnership contract with a health center, declaration of an infirmary to the administration, nurse employment contracts, contract with a doctor specializing in occupational health, etc
Compliance with regulatory health and safety at work requirements is very poor across logging companies, unless they are part of a credible certification system that regularly audits health and safety practices. The potential safety risks are:
Compliance with regulatory labour law requirements is very poor across logging companies (see for instance Global Witness, 2015), unless they are part of a credible certification system that regularly audits practices in terms of employment legality. The main breaches observed are as follows (Based on expert consultation, 2019):
The Congolese constitution prohibits slavery, cruel, inhumane or degrading treatment, and forced or obligatory labour. It recognises that all citizens have a right and a duty to work. It stipulates that the state must guarantee all citizens the right to work and must provide all workers with fair and satisfactory remuneration.
The Congolese Labour Code classifies working relationships into different types of contracts, including apprenticeships and employment. All employment contracts are either permanent or temporary.
Employment contracts specify the obligations of the employee and the employer. There is a certain amount of information that they must stipulate (duration, nature, date of entry into force, remuneration, etc.). They must comply with all regulations, collective conventions and company rules. Apart from situations in which the worker is hired on the spot, employment contracts must be drawn up in writing and submitted for approval by the National Employment Office (Articles 21 and 47 of Law n°015/2002). The same applies for the termination of employment contracts (Article 33 of Law n°15/2002). All employees must be declared to the National Social Security Institute (INSS).
Children below the age of 16 cannot be employed, however exemptions can be made from the age of 15 (with psychological/medical approval from an expert and the labour inspectorate) and for light and salubrious work. The worst forms of child labour are prohibited, as are tasks beyond their strengths or that expose them to high occupational hazards (notably including maintenance of machines and machinery, the driving of engines and equipment, the use and handling of saws, works that are carried out with dangerous tools or involve handling heavy loads, and any work presenting particularly high safety hazards). Workers under the age of 18 cannot work more than 8 hours a day. If the working period exceeds 4 hours a day, it must be split up by one or several rest periods of at least 1 hour. Workers below the age of 18 cannot work on Saturdays or Sundays. Wherever a company employs individuals below the age of 18, a list of said workers and their jobs must be drawn up by the employer, which must then be addressed to the competent labour inspectorate.
Remuneration must be at least equal to the daily minimum interprofessional wage (SMIG), which is set at 7,075 CFA francs per day for an ordinary labourer in 2018 (Decree n°18/017). This minimum wage increases depending on the worker’s category (specialist worker, semi-qualified, qualified, highly qualified, supervisory staff and employee) and how long the worker has been working continuously for the same company (3% increase per year). Workers must receive their remuneration by way of a payslip laid out in line with the template provided for by Ministerial Order n°12/CAB.MIN/ETPS/042.
Workers have the right to form organisations for the purpose of defending and developing their professional interests. No prior authorisation is required to form a professional organisation, also known as a trade union. Trade unions are required to register with the Ministry of Labour. Employers are prohibited from hiring or dismissing a worker based on their affiliation or lack thereof with a professional organisation. Workers are also represented by an elected delegation.
Legally, workers cannot work more than 45 hours a week and 9 hours a day, unless exemptions are made at sector level by way of an order. The right to a weekly rest day and annual leave must be respected. The law stipulates the right to at least 1 working day of paid annual leave for each full month of service for workers aged 18 and over, and 1.5 working days for workers below the age of 18. This period is increased by one day per year for every 5 years of service at the company.
Companies must have a set of internal regulations, stamped by the Labour Inspectorate (Art. 321 of Law n°015/2002).
In the event of force majeure, the employer may decide to interrupt its activities by agreement with the staff delegates and the administration. Main reasons include: forced leave (“congé technique”), scheduled shutdown (“arrêt technique”), financial problems, etc.
Pregnancy shall not constitute a source of employment discrimination. Any pregnant woman has the right to suspend her employment contract if a doctor believes that continuing to work constitutes a health risk. Any pregnant woman has the right to suspend her employment contract for fourteen consecutive weeks, a maximum of eight of which can be taken post-delivery and six before.
If a worker is transferred or required to work outside of their workplace, the employer is required to provide the worker and their family with appropriate housing or, failing that, appropriate compensation. The employer shall bear the consequent cost of transporting the worker from their place of residence to their workplace and vice versa.
Employers are obliged to ensure that the workers they employ receive professional training.
Concerns have been raised by civil society about the risk of creation of local community forest concessions controlled by loggers and/or local elites and/or non-local NGOs without the required involvement of communities (GIZ/KfW, 2016, Rainforest Foundation, 2018).
In 2014, upon the completion of the old forest title conversion process, 85 social clauses were signed by 57 forest concession holders in the DRC (sometimes with several social clauses per concession). Between 2011 and 2015, a low proportion of the required infrastructure was completed (38% of projects completed or on-going between 2011 and 2015) (Tsanga et al., 2017, Global Witness, 2015 and 2019).
Artisanal logging is also frequently conducted without prescribed contracts with local communities (OI-FLEG/REM, 2013, OI-FLEG/OGF, n°10-2017, n°11-2019, n°13-2019).
The exercise of user rights in forest concessions is notably governed by the forest management plan and the social clauses concluded between the local communities within the concessions and the logging operator, a template for which is provided by the regulations and notably includes an article listing the following user rights: collecting firewood, collecting wild fruits and caterpillars, collecting medicinal plants, traditional hunting and fishing (Art. 10 of the annex to Order n°023/CAB). The exercise of user rights shall not give rise to any indemnities or compensation payable to the concessionaire.
The Congolese forestry legislation also requires the concessionaire to take the local communities into consideration in the forest management plan. During the forest management plan preparation phase, the concessionaire must identify the local communities. The concessionaire must notably conduct a socio-economic survey that identifies, amongst other things, the different ways in which the local populations use the forest resources (Art. 12 of Ministerial Order n°034/CAB). The forest management plan is drawn up in conjunction with the local populations concerned and the law encourages these communities to participate in the management of the forest. The concessionaire must mention the applicable user rights in the concession’s forest management plan (Art 10 of the annex to Order n°023/CAB).
Furthermore, the “social clause” in the forest concession specifications (cahiers de charges) must redistribute the benefits of the industrial logging operations amongst the local communities, providing for the creation of socio-economic infrastructure for said local communities, particularly “the construction of roads, renovation and construction of hospitals and schools, and facilitation of transportation services for people and goods” (Art. 89 of the Forest Code). This agreement must be concluded following a consultation procedure between the local communities and the concessionaire. Several social clauses may be signed by a logging company, in line with the number of local communities within the concession (Tsanga et al., 2017).
The social clause template that must be used by all logging companies identifies all stakeholders and reiterates that it “aims to regulate the relationships between the parties regarding the management of the forest concession” (Art. 1 of the annex to Order n°023/CAB). It specifies what socio-economic infrastructure is required (Art. 4 annex) and the related schedule, and it indicates that the concessionaire will finance these activities through the development fund. This fund is financed by way of a payment of two to five US dollars per cubic metre of wood harvested within the forest concession.
Between 2011 and 2015, a low proportion of the infrastructure required within signed social clauses was completed (38% of projects completed or on-going between 2011 and 2015) (Tsanga et al., 2017, Global Witness, 2015 and 2019). Several problems were identified, notably including the lack of financing of the local development fund (FDL) due to the absence or interruption of logging operations, logging companies’ lack of internal skills required to carry out development works, and local communities’ lack of skills required to choose suppliers that are sufficiently equipped to carry out the works scheduled, etc. On the other side, the monitoring bodies (CLS and CLG) often struggle to carry out the supervision and monitoring duties assigned to them. The running of these bodies depends on the FDL being properly financed and their members often lack strong management abilities. This has led to widespread poor governance practices by the FDL managers, resulting in the misappropriation of funds and equipment and the over-billing of works (Tsanga et al., 2017).
The “social clause” in the forest concession specifications (cahiers de charges) must redistribute the benefits of the industrial logging operations amongst the local communities, providing for the creation of socio-economic infrastructure for said local communities, particularly “the construction of roads, renovation and construction of hospitals and schools, and facilitation of transportation services for people and goods” (Art. 89 of the Forest Code). This agreement must be concluded following a consultation procedure between the local communities and the concessionaire. Several social clauses may be signed by a logging company, in line with the number of local communities within the concession (Tsanga et al., 2017).
This fund is managed and monitored by two distinct bodies: the Local Management Committee (CLG) and the Local Monitoring Committee (CLS). The CLG is formed of one concessionaire delegate, several local community/indigenous population representatives and one civil society delegate to act as an observer. This committee is responsible for setting up the socio-economic infrastructure for the population. The CLS is responsible for monitoring and evaluating the commitments made between the concessionaire and the local communities/indigenous populations. It is formed of the district administrator, a concessionaire representative and three local community//indigenous population representatives.
Irregular / false declarations are made in the site log books; (Global Witness, 2015, OI-FLEG n°1-2013, n°3-2014, n°6-2016, n°11-2019, n°12-2019)
These breaches occur within the context of corruption amongst the officials in charge of checking / monitoring the sites and verifying the transport permits on the roads (Global Witness, 2015).
Check that the information included on the various documents relating to the logging operations and the transport of logs and sawn wood (site log book, transport permits) is coherent. Check that the species stated in the export/sales documents are the same as those that appear on the logging and transport documents (site log book, transport permits. Check that the species sold are the same as the species declared in the transport and sales documents
Check that the information included on the various documents relating to the logging operations and the transport of logs and sawn wood (site log book, transport permits) is coherent. Check that the species stated in the export/sale documents are the same as those that appear on the logging and transport documents (site log book, transport permits. Check that the species sold are the same as the species declared in the transport and sales documents
False declarations are made regarding species and their volumes on the transport slips; (Global Witness, 2015)
Prescribed declaration are not filed with the administration, or irregular / false quarterly declarations are made, or declarations are not accompanied by the valid documents used during the quarter for the purpose of forest administration checks. (Global Witness, 2015, OI-FLEG/OGF, n°3-2014, n°5-2015, n°7-2017 n°11-2019)
These breaches occur within the context of corruption amongst the officials in charge of checking / monitoring the sites and verifying the transport permits on the roads (Global Witness, 2015)
No site log book is kept to record daily production by the concessionaire (Global Witness, 2015, OI-FLEG/OGF, n°1-2013, n°3-2014, n°5-2015)
Consult relevant stakeholders or contract experts for advanced checks into traceability from the logging site.
Market prices are usually defined every year by the government authorities (“commission nationale de mercuriale” under the supervision of the Ministry of Commerce) and made public.
The issuance of irregular harvest permits (Global Witness, 2015, Greenpeace, 2015) and the use of fraudulent harvest permits (Global Witness, 2015) have been documented for Afrormosia (Pericopsis elata).
Significant work has been conducted with the assistance of international programmes (ITTO, FAO-FLEGT) to determine strict measures to be put in place for the issuance of Afrormosia harvest permits and CITES export permits (Congolese Institute for Nature Conservation, 2014). However, the study conducted for the DRC CITES body in 2014 also revealed a lack of coordination between the administrations in charge of monitoring logging operations in the DRC, which prompted the CITES management body to carry out a legality check for all P. elata export permits, which falls outside of its physical and technical capacities. These administrative issues notably concern the verification of administrative permit procedures, volume checks, the order of the stages in the export control process and limiting the validity of the permits to 6 months, leading in some cases to the cancellation and replacement of expired permits “with all the risks of incoherence and potential fraud that that involves.”
A report published by UNEP in 2014 reiterated that for CITES, the DRC is one of the most problematic countries in Africa for the illegal exploitation of natural resources, from ivory to wood. In a letter addressed to the CITES Secretariat, a number of international NGOs notably revealed their concerns regarding weaknesses in the inventory process for obtaining Afrormosia harvest permits, and poor monitoring of these inventories by the forest administration.
Several cases of illegal Afrormosia felling (without a special permit) have been documented. There are also concerns over the poor traceability of the wood and difficulties in ensuring that shipments of Afrormosia do indeed originate from concessions covered by a special permit. The new report containing the non-detriment finding published in 2018 by the Congolese authorities specified the different stages and players involved in the process for allocating harvesting and export quotas. There is currently no information in the public domain on the efficiency of these new procedures and their effective application.
The harvesting of Mukula or African padauk (Pterocarpus) is also exposed to a high level of risk, due to unclear and changing regulations issued by the administration, going from it being banned, to the ban being suspended, to the ban being reimposed, etc. (EIA, 2019). The logging pressure on Mukula has grown to the point that its sustainability has been questioned by several authors who have conducted investigations, notably into the supply chain in Katanga. Mukula is often exported from the Congo through Zambia before being shipped primarily to Asian markets.
Verify and cross-check information to ensure that CITES permits are legally issued and the species are legally harvested
No risk of systematic illegality has been identified
All companies have a national identification number, which must be displayed on all documents (letters, invoices, receipts) issued by them. Traders must also all be added to the Trade and Personal Property Credit Register. They must conduct their bookkeeping and draw up their annual financial statements in compliance with the provisions of the Organization for the Harmonization of Business Law in Africa (OHADA). The national identification number and inclusion on the Trade and Personal Property Credit Register are obtained from the Guichet unique de création des entreprises, a single point (“one-stop shop”) for business creation.
Industrial installations presenting dangers or disadvantages are ranked according to the potential degree of severity. They are initially submitted either for declaration, or for authorisation, which gives rise to a national or provincial operating licence.
Before an operating licence can be issued, a preliminary public inquiry is conducted by the environment administration. If the installation could potentially have an impact on the environment, an environmental and social impact assessment is carried out instead.
The DRC's industrial processing units are all located in the town of Kinshasa, apart from two major industrial sites located in Nioki in Bandundu and Bumba in Équateur (NSIMBA, 2012).
Verify that the environmental and social impact assessment was developed
Verify that a Environmental and Social impact assessment was developed.
Compliance with regulatory health and safety at work requirements is very poor across logging companies, unless they are part of a credible certification system that regularly audits health and safety practices.
The potential risks are: