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

this research.

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

neighbouring countries.

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

their opportunities.

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

perspective.

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

period.

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

problem.

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.