In 2017 we welcome a couple of new doctors who have written their PhD dissertation on mining-related issues.
On 21 June 2017 Marie-Rose Bashwira succesfully defended her PhD entitled “Navigating obstacles, opportunities and reforms: Women’s lives and livelihoods in artisanal mining communities in eastern DRC” at Wageningen University and Research. An executive summary of the PhD dissertation can be found below.
On 5 July 2017 Christian Bahala succesfully defended his PhD entitled “Le statut professionnel de l’exploitation minier artisanal congolais saisi par le droit de l’OHADA. Contribution à l’expérimentation de l’idéal de sécurité juridique dans un environnement d’hybridation normative et institutionnelle” at the Université Libre de Bruxelles.
Abstract Christian Bahala
The OHADA legal framework is acknowledged as a modern business framework in Africa.
Through a secure legal environment, its intention is to enable member States to attract and maintain
international investments, but also to incentivize local economic activities. This basically explains
the eagerness of the DR Congo to accede, which allowed it to reform its legal framework on the
protection of local, national and international investors. Artisanal miners are an example of actors
involved and thus faced with the OHADA regulatory framework. Nevertheless, they are often still
exposed to extensive normative insecurity.
Relying on the artisanal mining activity, this research appraises the scope of legal security provided
for under OHADA law for the protection of local and national economic actors. This thesis
approaches the subject from an interdisciplinary socio-legal point of view. It attempts to evaluate
to which extent legal certainty is realized within the OHADA framework, taking into account the
impact of social, historical, political, cultural and economic factors. Thus, the researcher goes
beyond the formalistic approach, limited to simply establishing the existence or non-existence of
legal certainty under OHADA for artisanal miners, and considers the sphere of legal security as
procedurally or adequately influenced by the contextual experience in artisanal mining. In that
context, the contributions as well as limitations of OHADA in refining the status of artisanal miners
suited to their expectations are unveiled.
The point of departure of this research, revisits the long gestation of the notion of legal protection
of artisanal miners under the Congolese mining legal framework. Contextual concerns justify such
a detour, in order to grasp the qualitative weaknesses of the rules it lays down. These shortcomings
essentially relate to the grip of the political, economic, social, historical, cultural environment in
Congo, which hampered the convenient apprehension of the artisanal miners’ status. That is why
the symbiosis between law and society served as the analytical framework for drawing sound
conclusions regarding both the old mining regimes and the current Mining Code.
From the backdrop of these legally uncertain positions, this thesis goes on to consider and suggest
what alternative legal statutes under OHADA law could be established. In particular, the status of
“Entreprenant” can ensure the protection of artisanal miners in their individual capacity, where
cooperative structures can provide a legal vehicle for collectives grouping “entreprenant”-miners.
However, the resurgence of contextual and sectorial specificities of artisanal mining may make the
risk of ineffectiveness of these two statutes persists. In order to appraise their adequacy and
relevance vis-à-vis the aspirations of artisanal miners and their infrastructural realities, have been
subjected to this socio-anthropologic methodology. The intertwinement of the regulatory statutes
and local realities, suggesting context-based improvements for entrepreneurial regulations for the
normative system in the artisanal mining sector in Congo, and, in particular, for the vehicle of
cooperatives under OHADA law, is what creates the innovative and informative added value of
Executive summary Marie-Rose Bashwira:
For more than two decades, the exploitation and trade of minerals has fuelled armed conflict and
fostered a climate of insecurity that has led to the deaths of thousands of people in eastern
Democratic Republic of the Congo (DRC) (Katanga, Ituri, Maniema, North and South Kivu). This has
been seen as a consequence of prolonged socioeconomic and political instability since the late 1980s
and 1990s, when a civil war led to the collapse of the Zairian state and there were civil wars in
As a result of this situation, many armed groups prospered in this region. Mineral exploitation,
especially of tin, tantalum, tungsten and gold, encouraged these groups to stay in the strategic areas
of the territory (e.g. mining areas and those on the main transport routes) and to continue the
fighting. These armed groups have claimed to maintain order and to protect the people in exchange
for a system of illegal taxation of the exploited minerals, which is imposed by force and threats.
The diggers and the local populations are the first victims of this conflict over the control of the
natural resources that directly or indirectly support the war. These people are subjected to
permanent violence and illegal taxation. Massacres, kidnappings, looting, forced labour and
insecurity have been part of their everyday lives. This violence is primarily directed at those involved
in the supply chain—from extraction to trading minerals outside the mining sites. In the eastern
provinces of DRC, transporters, traders and diggers, as well as women and children attached to
auxiliary work, such as crushing or washing the minerals, were taxed and ransomed under threats
and subjected to the use of violence.
Faced with the critical situation in DRC, the international community did not remain silent. A growing
movement for greater accountability of multinational companies regarding human rights and greater
transparency of supply chains of minerals exploited in DRC has emerged and become a reality in the
global market. From simple voluntary initiatives to international norms, these approaches are based
on the same principle: due diligence applied to ‘conflict minerals’.
When conflict in DRC is discussed, two things seem to stand out systematically. First, there is the
‘resource curse’, referring to the impoverishment of local populations living in mining zones,
corruption and poor governance. Second is the discussion of ‘sexual violence as a weapon of war’
against women. Little is said about the women who work at artisanal mining sites, except to draw a
simplistic portrait of passive victims. The truth is that the mining community is far more complex
than what has been pictured, and the high-risk mining sector is sometimes considered a source of
opportunity for certain women.
Indeed, in DRC, it is estimated that the artisanal mining sector accounts for 90% of the national
production and directly or indirectly furnishes the livelihoods of almost 20% of the population,
including many women. Traditionally, in several local cultures in DRC, women are not allowed to
enter the mines. Instead, they are assigned to secondary tasks in the processing phase of mineral
exploitation: transporting, crushing, washing and reprocessing. Some women sell alcoholic beverages
or other goods, and others are engaged in prostitution.
This thesis focuses on women and mining. Instead of viewing women at the mining sites as victims,
the study took an actor-oriented perspective. This starts from the idea that all women at the mining
sites have agency and are creating room for manoeuvre to overcome the difficult situations they face
in the world of mining. However, there are large disparities in the room for manoeuvre available to
different women; some women have very few options, whereas others can diversify and expand
Taking this approach, the study sought to answer the main research question: How do differentially
positioned women navigate and negotiate the transformations of artisanal mining in the context of
mining reforms in eastern DRC?
The research took place from 2013 to 2014, partly in the province of South Kivu (Nyabibwe and
Kamituga) and partly in North Katanga, in the current province of Tanganyika (Kisengo and Manono).
Two mining sites were chosen in each area, either because they were pilot sites for implementation
of the reform initiatives (Nyabibwe and Kisengo) or because of large numbers of women working as
miners (Kamituga and Manono).
This research is part of the ‘Down to earth: Governance dynamics and social change in artisanal and
small-scale mining in DRC’ research programme. This programme aims to understand the negotiated
outcomes of the implementation of conflict mineral policy in the eastern Congolese artisanal mining
sector on three important topics: gender, livelihoods and governance. This thesis project addressed
the first aspect in particular and aimed to contribute to the debate on mining reforms from a gender
Chapter 1 starts with a general introduction to the research objectives, questions and methods. It
describes the process through which the studied mining sites were selected based on either the
presence of iTSCi initiatives or a great number of women working in the mineral supply chain. This
research has essentially relied on qualitative methods, such as interviews, focus groups, life histories
and observation. This chapter also describes some of the personal experiences during the fieldwork
Chapter 2, which was jointly written with J. Cuvelier, D. Hilhorst and G. Van der Haar, introduces the
debate around the conflict-related discourse on women’s integration in the mining sector. We
examined the rise in international-level attention from international NGOs regarding international
norms and the ban of ‘conflict minerals’ exploited in DRC. The resulting reforms, which were
intended to improve women’s lives, were observed to also ultimately have negative side effects. The
prohibition of pregnant women from the mines was generalised to all women, and access to the
mining economy become a matter of negotiation for women. In the same vein, taking the particular
case of Nyabibwe, women working as intermediaries between traders and diggers, although their
work was an illegal practice in the government’s view (especially because of traceability issues),
managed to negotiate recognition for their activities by creating their own organisation and forming
political alliances. The thesis sheds light on the consequence of protectionist measures on women in
mining and lays the groundwork for the following chapters, which further explore the research
Chapter 3, jointly written with G. Van der Haar, introduces the world of women in the mining areas
by presenting reasons that lead women to move to and install themselves in mining centres. The
analysis examines push and pull factors and also considers the concept of social navigation. The
findings demonstrate that there are multiple, interrelated reasons to migrate to and to install oneself
in the mining areas. Push and pull factors have merged over time and resulted in complex motives.
This chapter adds to the understanding of how women create new sources of revenue and seek, with
varying levels of success, to mitigate situations of vulnerability.
In Chapter 4, I analyse the activities that women perform in the mining areas in more depth and
describe what differentiates these women. The chapter begins with a descriptive analysis of the
activities directly and indirectly related to mineral exploitation, together with a description of
prostitution in the mining areas. The study identified social capital, financial assets and credit, and
livelihood diversification among the factors that may differentiate these women. The findings also
show that the reform process itself is a factor of differentiation, because it creates unbalanced power
relations between those who are able to afford an identification card (a requirement of the
formalisation process) and those who are not. The chapter concludes that, although many scholars
have argued that women are working in the dire situation of perilous, exploitative and marginalised
conditions, some women gain power positions and manage to save money and invest in other
activities. Through their social networks, some women are able to gain access to the mining economy
and improve their situation.
In Chapter 5, jointly written with J. Cuvelier, we explore how, as is the case for men, there are also
elites among women. These elites can be considered ‘big women’. Their power is based on either
customary or official authority. With the implementation of the reform initiatives, the importance of
official authority increases, to the detriment of customary authority. Based on the case of Kisengo
and, in particular, on two female elites—one based on customary and the other on official power—
we analyse how elite women negotiate and maintain power. Especially interesting for this study was
how both ‘big women’ took advantage of their privileged access to the public authorities to negotiate
informal arrangements for a group of women working in the coltan supply chain, allowing their
clients (followers) to circumvent certain restrictive regulations concerning women’s access to mining
activities. These elite women managed to control access to labour opportunities for women in the
local mining economy.
Chapter 6, jointly written with D. Hilhorst, explains that, following the developments of the reform
initiatives, there was no longer only one discourse (conflict-related) to be taken into account when
analysing the problem of women’s access to the mining economy. At international level, there is also
a more inclusive discourse (gender mainstreaming). This coexists with the local ideology based on
culture, in which women are marginalised and discriminated against. The civil servants who must
implement the law regarding the integration of women in mining activities must face the coexistence
of these different ideologies, which are sometimes contradictory. This has direct consequences for
women’s access to the mining economy, although some women do create room for manoeuvre by
forming alliances with civil servants.
Concluding this thesis, Chapter 7 is intended to be a response to the concerns raised in the
introduction. Starting from the concept of law, and taking an actor-oriented approach, the thesis
concludes with three key points about how the reform initiatives affect the positions of woman: 1)
Differentiated discourses on women shape women’s access to the mining economy in different ways.
2) Women’s differentiated roles, opportunities and power relations determine how they respond to
challenges and change in the mining labour regime. 3) It must be understood that artisanal mining
sites are numerous in DRC and that each case is unique. Further, women in the mining economy are
diverse: they have different needs and different motives.