Eighty-Eight Less than Luther

I spoke last month at the New York City Bar Association* on the predictable but unintended consequences of DF 1502 on armed conflict and economic development in eastern DRC. The other speakers were Nicolas Grabar, a securities lawyer, who provided a wryly skeptical perspective on the law's likely effects; the redoubtable Kambale Musavuli, of Friends of the Congo, who laid out the context for understanding the situation in DRC; and Fidel Bafilemba, of Enough, who had the unenviable task of responding to me in English. I say unenviable because English is his 13th language; debating in a language you don't have near-native fluency in is a difficult proposition, and I imagine that much past your sixth or seventh language the remarkable thing is to be doing it at all.

I told the audience I had seven theses I wanted to nail to the church door, the church in this case being the heavily policed belief that going after the minerals, rather than the warlords, offered a shortcut to peace in Congo. After 30 years of Mobutu and 14 of war, there are no indulgences to reconstituting the state in eastern Congo.

1) Dodd Frank has resulted in a de facto embargo. 
According to Reuters, there's been a 90 percent drop in mineral exports as a result of the law's passage. According to Enough, there's been a 75 percent drop. And according to the Economist, there's been a 95 percent drop in productivity from some mines. My own impression, by the way, was that many miners continue to work because they don't really have alternatives. But they aren't working as often as they used to, aren't selling nearly as much, and are making much less per kilo sold--often less than half of what they were making before DF. (Some minerals are being smuggled out to neighboring countries and relabeled as local product; others are being stockpiled.) Whatever the law's intentions, an embargo has been the outcome.


2) The hypothesis that DF 1502 will play a decisive or even significant role in ending the conflicts is speculative, at best.
Most of the conflicts today in the Congo are overdetermined: that is to say, they have multiple, interacting causes. These include disputes over land use, arguments over chiefly succession, and politically manipulated debates about who is or is not a citizen. While some of the militia are clearly ethnic self-protection forces, others get support from neighboring countries and still others have a millennial, "spiritual" component and take their inspiration from colonial-era struggles.

Another complication is that militia make money in a variety of ways, not just from taxing the mineral trade. When I was in Congo this summer, for example, the FDLR kidnapped some villagers in Shabunda and held them ransom, demanding $6,000 and six virgins (!). Other groups extort money from market places or even hospitals; others just clobber women returning from market and take the $20 they may have earned from selling beans or manioc or charcoal. It doesn't cost very much in that part of the world to run a militia. Guns are cheap, and there isn't much in the way of alternate livelihoods that would give young men reason to defect.

Furthermore, all of these militia are operating in a lawless, ungoverned environment. With no competent army controlling the territory, the outcome is exactly as Hobbes might have predicted. During my trip a good fraction of the army was withdrawn from the field in eastern Congo to undergo a two-month training program. Unfortunately, substitute troops weren't sent to the areas where the army was withdrawn, with the consequence that rebel troops moved right back in to these now-unoccupied territories. No amount of pleading from local communities could convince the army to dispatch troops from other regions to help protect them.

In short, even if you could wave a magic wand, so that only the "bad guys" ceased to profit from the mineral trade, in all likelihood this still wouldn't end the conflicts. The fights would continue over other causes, the militia would find other ways to provision themselves, and the lack of any controlling Leviathan would mean that the bad guys would always find it expedient to reach for a gun.

Which brings me to thesis number three:

3) There is no magic wand.
There is nothing surprising, as Ken Burns is currently reminding us, about the fact that when you try to outlaw something for which there's a strong demand you hurt legitimate business but help people willing to work in the shadows. The biggest winner of Dodd-Frank right now is Bosco Ntaganda, the Hague-indicted CNDP warlord ("officially" enrolled now in the Congolese army), who's basically a psychopathic killer pretty scary dude. He's reported to control the smuggling out of the minerals out of North Kivu.

4) The de facto embargo is having a devastating impact on the miners and on the regional economy as a whole.
The September 28 issue of the Economist describes the impact:

In the past year Goma has suffered a miserable decline. Hundreds of mines in the surrounding countryside have cut output by as much as 95%. At the Humule coltan mine a few gumbooted miners scramble up a red-earth ravine where last year there were thousands. Most stopped coming because they could no longer find buyers for their nuggets of coltan, a metal used in electronic gadgets. They blame what they call “the American law”. 

An obscure provision in the 2010 Dodd-Frank banking act forces companies listed in America to disclose the exact source of metals procured from Congo. The intention behind the law was good. Congolese militias and rogue army units, whose members rape and murder with abandon, finance themselves through mining and extortion from miners. The law tries to shame big buyers, such as Apple and Motorola, who use Congolese coltan, into dealing only with bona fide suppliers. But the effect has been to frighten them away from Congo altogether. 

So the local economy has dropped off a cliff. Some unemployed miners had been expected to join militias, though evidence that they have done so is scant. Still, militia leaders and corrupt army commanders targeted by the Dodd-Frank law are doing rather well. Unlike legitimate dealers, they run smuggling networks and take metals across borders to sell them. Officials in Burundi, Kenya, Rwanda and Uganda are complicit or turn a blind eye.

This, if anything, paints a grimmer portrait of the embargo's impact on Goma than what I saw, two months earlier, of its impact on Bukavu. But as bad as things are for the regional economy, it's out in the mining areas that D-F is really destroying communities: There are children unable to go to school, mothers unable to afford the fees for maternity clinics, and even some indication of emerging hunger--all as a result of DF 1502.

That said, one of the troubling aspects of what's happening is what we don't know: No good social science monitoring is being done of the impact of the law on the mining sites and in particular on the people who depend(ed) on mining for their livelihood. One of the things I've been calling for (so far without any takers) is a social impact assessment to determine what's happening to the miners whose livelihoods we've eliminated and a needs assessment to determine what we need to do to help them.

5) These consequences were not only predictable, in the Monday morning quarterback sense of the word, they were widely predicted before the fact.
There were any number of people warning about the potential impact of Dodd-Frank. They include experts from local groups, such as the Pole Institute, BEST, and OGP. They also include experts in artisanal mining and international ngos working in Congo. In fact, most people who knew the region immediately realized the danger Dodd-Frank would pose to the local miners and did all they could to make their concerns known. Yet that in no way deflected the advocates from their mission, nor did it move them to press for ways to mitigate the harm the law would cause to highly vulnerable people.

6) The serious local ngos feel that the debates have been framed in a way that excludes them, and that their voices aren't being heard.
I heard over and over again while I was in Congo that local experts felt excluded from the debate. To the best of my knowledge, Dodd-Frank was passed without any US legislator (or his/her team) consulting any of the reputable local experts on artisanal mining. Instead, advocacy groups such as Enough and Global Witness suppressed information about how controversial their position was locally and spun a tale about how they were heroically confronting greedy corporate interests. Here, for example, is a report from a group called the makeITfair project, a decidedly left-wing organization committed to involving European youth in ending the conflict in DRC.

The makeITfair project, however, deplores the lack of communication with local stakeholders when formulating what should be done. The report entitled ‘Voices from the inside’ presents local views on mining reform in Eastern DRC. Although civil society groups welcome policy makers who are trying to ‘clean up’ the mining business in Eastern DRC, they want to have a stronger voice in the debate and more input into the initiatives that are currently taking shape. 

"When high level institutions and industry are busy drawing up standards, local views and priorities are in danger of remaining unheard. The makeITfair project wants to channel the voices of people and civil society in Eastern DRC," says Päivi Pöyhönen, researcher at Finnwatch and coauthor of the report.

7) It's still possible, perhaps, to salvage something from this fiasco.
Many knowledgeable Congolese agree with the ultimate goals of DF 1502: increasing transparency in the mineral trade and reducing the ability of warlords to profit from that trade. The problem as they see it is that DF 1502 put restrictions in effect before the mechanisms were in place to determine which were or were not conflict minerals. There were a variety of such initiatives under way. Some of these were local; some were undertaken by the Congolese government; and still others were largely initiated by donors such as the German geo-physical institute. (Another sadly predictable consequence of DF 1502 is that several of these initiatives have been shelved because there's no legitimate mineral trade taking place any more.)

These Congolese acknowledge that Dodd Frank is now the law of the land in the United States. What they are asking for is a phase-in period of three years so that these mechanisms can be put in effect. The details of that proposal are still being worked out. But the bottom line is that this can't and won't be a way to stall, as critics of the phase-in contend, because at the end of three years the law will have to be fully implemented, whether or not the mechanisms have been installed.


Finally, I offered my "theory of the case"--how an ngo that started with the best of intentions ended up causing such harm to the Congolese. My own theory--and it's just that--is that Enough found itself with a conundrum. It takes its brief as northern and central Africa. Its mission is to generate public support for US-government policies that improve these situations. In Sudan, Enough had a case that resonated with a large number of Americans. Darfur was a genocide, so something needed to be done. But no straightforward label could be applied to Congo, which featured a 15-year war involving seven neighboring countries and 20-plus armed groups. So it came up with the narrative of rape and minerals. This was a great way of generating attention: a way of implicating ordinary Americans in the problems of a distant and otherwise incomprehensible African war.

If they had merely over-simplified the case to generate public attention, that might have been a venial sin, forgivable in context. But in the event, the story they told ended up driving their policy recommendations. The narrative of rape and minerals was seductive; it allowed them to establish a framework that flattered their efforts. Here they were, the brave activists, confronting greedy corporate interests in bed with African warlords. What a movie! What a bedtime tale to tell their grandkids!

And if, in the end, they had to suppress the warnings of local activists and scholars, if they had to ignore claims that their policies would lead to disaster for the very people they ostensibly championed--well, who would know? Africa's a long way away, few of them speak English, and who anyway wants to hear about complications?


*Which reminds me, I still need to send them my train ticket receipts.