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9 Jun 2015

Shira Stanton & Jean-Philippe Kot, Avocats Sans Frontières

Justice in Fragile States: Seeking corporate legal accountability in the domestic courts of Democratic Republic of Congo

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Almost ten years after the lawsuit against Anvil Mining was brought before a Lubumbashi military court, a new conflict between a logging company, SIFORCO, and a community affected by the company’s activities is before a domestic court of Democratic Republic of Congo (DRC).[1] The trial started 5 June in Mbandaka, in DRC’s western province of Equateur, and represents a significant step forward to ensure justice for an affected population.

To date, the attempt to reform the Congolese forest sector has failed to bring legal compliance and transparency to the extractive industries operating in DRC. Particularly problematic have been the usage rights set aside for local communities and indigenous forest peoples in the concessions allocated to industrial timber companies. In principle the official policy is that communities should receive development funds calculated on the basis of the volume of timber logged in their area, but this has little bearing on reality. Both negotiating these clauses, and implementing the negotiated agreements, have been problematic, and have often led to conflicts and abuses.

In the case against SIFORCO, tensions arose following the company’s failure to execute contractual obligations related to its “social responsibility” agreement. The community’s protests (after multiple rejected requests to meet with the company’s managers) against the non-implementation of the company’s obligations were met with violence. In the early morning hours of 2 May 2011, a group of around sixty DR Congolese armed forces and police descended on the village of Bosanga in Yalisika. Driving trucks provided by SIFORCO, they proceeded to rape multiple women in the village, beat up villagers, and destroy people’s property, including burning down one house. Fifteen village residents were arbitrarily arrested, taken in the SIFORCO truck to the nearest prison. Soldiers and police officers stopped along the way to receive payment from SIFORCO’s site manager. The detained villagers were released four days later due to absence of official documents justifying their arrest. Avocats Sans Frontières (ASF) has been supporting the lawyers representing the victims of this attack before Congolese courts.

The trial will address the extent of control and responsibility a company must have over a crime for it to be held legally accountable, and will clarify how a company can be “vicariously” liable for a crime committed by security forces acting on the company’s behest. The fact that the trial is organised in the very place where the violations were committed makes the proceedings all the more meaningful to the people and witnesses who have suffered directly at the hands of perpetrators. Active participation in the trial can help restore dignity to victims via increased agency, and the public recognition throughout DRC can serve as an example to other communities who are similarly threatened.

Filing this criminal complaint was an act of extraordinary courage by the claimants given the retaliation that can and does occur when communities stand up for their rights. One of the biggest challenges in this case has not been weak rule of law or complicated legal systems, but distance and logistics. The place where the crime occurred is geographically remote with poor infrastructure, and difficult (and thus expensive) to access. The predominance of logging companies in the region, combined with their economic influence has serious implications for working safely and confidentially.

Before getting this case to court, the claimants faced many challenges such as protecting free and open communication with their lawyers, and making informed decisions to guide the work of their lawyers in an environment marred by rumours and disinformation. The best response to these challenges has come from those people most affected by what happened on 2 May 2011; for example, they banded together to make it clear to those outside the community that people with socially dominant roles, such as chief, priest or otherwise, who purport to speak on their behalf, do not have carte blanche. The community’s involvement in each step of the process has been a powerful message to various actors along the justice chain about the need to see the justiciable, the claimant,as the central actor in the legal process. This active involvement has created a positive relationship in which those people seeking justice feel empowered – it enables them to clearly communicate with their lawyers and others supporting them. This in turn has empowered their lawyers to do a better job, as they know they are taking actions that benefit all their clients, especially those who are most at risk of being sidelined by more powerful actors.

Seeking corporate legal accountability is not easy in any setting, and court cases everywhere can be marked by lengthy processes and/or lack of political will to use the law to protect people in vulnerable situations. The situation in DRC presents different, but not impossible, challenges from those in Europe. Ensuring that companies cannot act with impunity requires confronting the structure that somehow led them to believe they could. The former UN Special Rapporteur on Extreme Poverty and Human Rights argued that challenging these power differentials meant that “it is necessary to understand the way that power plays out in a particular context, to diagnose asymmetrical power relations and understand how power is exercised both within and between communities to control and exclude disadvantaged groups.”[2] Seeking justice for corporate crimes in the country where the crimes occurred presents unique opportunities to understand certain aspects of these power relations and to address them in a manner guided by those people who are often pushed aside.

Having a trial at the domestic level is a significant event in this search for corporate accountability. Justice in fragile states can only function in the long-term and establish itself as a relevant regulatory authority if the people seeking justice are proactive stakeholders who, by way of their actions, contribute to making the law effective and enforceable for all. If people in vulnerable situations can do this, they can challenge the structural causes at the root of their situations of vulnerability.

Shira Stanton is the Human Rights Expert at ASF.

Jean-Philippe Kot is International and Transitional Justice Expert at ASF.

[1] SIFORCO’s response to these allegations is here.

[2] Magdalena Sepulveda Carmona, 2013. “Report of the Special Rapporteur on extreme poverty and human rights”. A/HRC/23/36, paragraph 15.