The Interplay Between the Sino-congolaise des Mines (Sicomines) and Climate Change
Nciko wa Nciko, LL. B, Strathmore University Law School; LL.M, Geneva Graduate Institute of International and Development Studies
The Democratic Republic of the Congo’s mining sector is dominated by approximately 20 companies. According to the Congolese Chamber of Mines, Chinese mining companies control around 70% of this sector. The DRC possesses substantial reserves of critical minerals, including being the world’s largest producer of cobalt, for which it accounts for over 70% of world production in 2020. Additionally, the country ranks sixth in copper production.
China has actively engaged in the mining sector of various African countries through resource-forinfrastructure (R4I) deals. The Sino-congolaise des mines (Sicomines) deal, signed with the DRC in 2008 and often referred to as the deal of the century, is one of the most controversial of these R4I deals that China has ever entered into with an African country.6 This deal was a contract established to repay a $6 billion loan that came from the China Export-import (Exim) Bank. Of this amount, $3 billion was allocated for infrastructure development, such as roads, hospitals, universities, and housing, while $3.2 billion contributed to the creation of Sicomines – the mining company that is to minerals (mainly copper and cobalt) to repay the $6 billion.
Scholarship and general discourse on Sicomines tend to focus on two areas. The first area is economic and political and aims to determine the winners and losers of the Sicomines deal in terms of its political and economic effects. The second is on human rights, including the environmental risks associated with Sicomines. However, despite the focus of civil society organizations on human rights and environmental concerns, there is a lack of critical analysis regarding Sicomines’ contribution to climate change. Given that the DRC produces approximately 70% of the world’s cobalt, with 35% attributed to Chinese mining companies, of which Sicomines is the primary player, Sicomines’ disregard for CO2 emissions could have significant implications for climate change.
This paper is based on fieldwork conducted in the Congolese mining cities of Lubumbashi and Kolwezi during the months of April and May 2022. The findings have been arrived at through interviews, and existing studies and reports on Sicomines, as well as Congolese legal texts and policy documents. Lubumbashi and Kolwezi formed the focus of this paper because Congolese civil society organizations and government bodies that have engaged with Sicomines regarding human rights and environmental issues are mainly located in these two cities. The civil society organizations interviewed include Initiative Bonne Gouvernance et Droits Humains (IBGDH), Observatoire Africain de Ressources Naturelles (Afrewatch), Carter Center, and Action Contre l’Impunité pour les Droits Humains (ACIDH). These organizations regularly work together on Sicomines’ operations in the DRC.
Government bodies interviewed included the ministère de l’Environnement et Tourisme and Direction pour la Protection de l’Environnement Minier (DPEM) in Kolwezi, the Agence Congolaise de l’Environnement (ACE) in Kolwezi, the Procureur Général près la Cour de Lualaba in Kolwezi, Générale des Carrières et des Mines (Gécamines) and Division des Mines in Lubumbashi, and the Bureau de la Météorologie in Lubumbashi. Additionally, an anonymous Sicomines officer and Professor Sabin Mande, an expert in environmental protection, formed part of the interviewees of this paper.
Congolese law and government bodies
The representatives of civil society organizations interviewed expressed a lack of confidence in the Congolese judicial system, not only regarding Sicomines but also the entire mining sector’s violations of human and environmental rights. Some officers within civil society organizations have even faced security risks, including imprisonment and death threats, when investigating miningrelated issues. They cited limited resources dedicated to pursuing legal action, as well as the judicial system’s perceived lack of impartiality and its undue regard to procedural technicalities at the expense of delivering justice. Emmanuel Umpula et Céline Tshizena of Afrewatch noted that taking legal action in Congolese courts and tribunals is doomed to failure, because class actions – which could make sense against Sicomines’ violations – are not encouraged under Congolese law. Indeed, to bring any action before courts and tribunals is dependent on the will of the individual victims who have suffered human rights violations as a result of mining activities. It is in this vein that Tshizena concludes that civil society organizations are discouraged to approach courts and tribunals. Umpula has noted that certain communities have gotten a favorable decision against mining companies before the African Commission of human rights; unfortunately, the DRC government has never implemented that decision.
Given this reality, civil society organizations in the DRC mining sector primarily focus on conducting studies, producing reports, and issuing communiqués to raise awareness of human rights and environmental violations for which Sicomines (amongst many others) is responsible. Their aim has been to engage government bodies, to make them aware of these issues, and promote transparency in the mining sector at national, regional and international levels..
The lack of state power in addressing environmental impacts related to Sicomines’ activities is primarily attributed to the exclusive authority that the Congolese Division Provinciale Des Mines (DPEM), a state body, has in dealing with related environmental issues.17 Government bodies with technical environmental expertise, such as the Agence Congolaise de l’Environnement (ACE), the Ministère Provincial de l’Environnement et Tourisme, and the Parquet General of Lualaba (court), have limited power in regulating the impact that mining activities have on the environment. Their intervention can only happen if done in collaboration with DPEM.18 Angela Thionda-Luanga, the Director of ACE, recounted instances where her Agency attempted to assess adverse environmental impacts caused by Sicomines’ activities. She shared that her Agency was prevented from doing so by Sicomines officials who were quick to invoke provisions of the Congolese Mining Code of 2018 that demand that no environmental action in the mining sector should be carried out unless it is done in collaboration with DPEM.
This highlights a lack of transparency and operational synergy between DPEM and other government bodies that have the skills and the expertise to deal with environmental issues. The Ministère Provincial de l’Environnement et Tourisme, the Parquet General of Lualaba and the ACE have argued that environmental questions in the mining sector should be handled by environmentalists, suggesting a need for restructuring and improved operational sysnergy between relevant government bodies. But, as of the time of writing this paper, this had not happened.
Ilunga Mwela, President of the Parquet de Lualaba, emphasized the politicization of the DRC mining sector as a reason for the lack of transparency. He alleged corruption at various levels, including within DPEM and civil society organizations. Mwela cited examples to support these allegations and suggested that some civil society organizations may prioritize financial gain over environmental justice, ultimately hindering cases from reaching the Parquet de Lualaba.
Sicomines and climate change
Mining companies in the DRC have been accused of deforestation and polluting rivers on which local communities rely, as well as of discharging toxic waste onto their farms, which has adversely affected their crops. The focus on these types of issues has been very anthropocentric, caring only for immediate, direct, and visible adverse environmental issues that can be felt on the human skin. Yet, there is more to the environment than what is immediately, directly, and visibly impacted on the human skin. Sicomines, on paper, respects reforestation as required by the DRC Mining Code of 2018. It pays a reforestation amount to the Fond Forestier National (National Reforestation Fund), a government body that facilitates reforestation (though Lukanfi notes that there is a lack of transparency in dealing with this fund). But there has not been any attention to the atmospheric pollution/CO2 emissions for which Sicomines is responsible, even though the Mining Code requires that the methods and equipment used by mining companies must be environmentally friendly.
All the organizations and government bodies interviewed were clear that they have never conducted any systematic study on the link between mining activities and climate change in the DRC. Sabin Mande, an environmental law professor, argues that scholarship and general discourse on mining activities are also silent on the link between Sicomines and its CO2 emissions. But those are real, he argues, noting that the soil acts as a carbon sink, but once opened, it releases CO2 emissions into the atmosphere. Furthermore, the equipment and methods used by mining companies such as Sicomines are not climate-friendly. Umpula of Afrewatch has shared that the methods used by Sicomines for mining and the methods it relies upon are carbon-intensive. Whatever the case, the DPEM, the ACE, and the Ministry of the Environment, as government bodies that may address environmental issues such as CO2 emissions resulting from the mining sector, as well as the civil society organizations interviewed, all lack the technological and scientific capabilities to assess the amount of CO2 emitted into the atmosphere by Sicomines and other mining companies in order to hold them liable for their respective emissions.
As producers of approximately 35% of the world’s cobalt and controlling a significant portion of copper production in the sixth-largest copperproducing country, the contribution of Chinese mining companies to climate change cannot be ignored. Therefore, it is crucial to address CO2 emissions stemming from the DRC mining sector. While the mining copper and cobalt are expected to play an important role in the just transition, Sicomines’ behaviour should remind us to
“[A]nticipate that some extractive corporations will appropriate the term just transition as a way of countering negative public sentiment or in an effort to mobilise consent and promote a hollowed-out understanding of justice.”
From the findings presented in this paper, a critique may conclude, and fairly so, that there is no justice in the just transition that Sicomines’ copper and cobalt may be claimed to promote. Steps must be taken at multiple levels of governance. Nationally, Congolese law should grant government bodies with more knowledge and expertise in environmental matters the leading role in addressing environmental pollution in the mining sector. Furthermore, Congolese courts and tribunals should facilitate class actions and dispense justice expeditiously, without undue regard for procedural technicalities. One significant drawback that persists in the DRC Constitution (2006) is that ordinary citizens and civil society organizations lack standing before Congolese courts to challenge the constitutionality of international agreements that are not climatefriendly, such as the Sicomines contract.
One possible avenue for action is that the DRC has joined the East African Community (EAC). Unlike the DRC Constitution, which denies locus standi to ordinary DRC citizens when challenging international agreements such as the Sicomines contract, they now have standing before the EAC. Article 30 of the EAC Treaty states that any resident of a Partner State may refer the legality of any Act, regulation, directive, decision, or action of a Partner State or an institution of the Community to the Court, on the grounds of unlawfulness or infringement of the provisions of the Treaty. Therefore, the DRC’s joining the EAC could have a ripple effect of expanding access to justice, not only for conscientious civil society organizations but also for ordinary citizens. It is worth noting that the EACJ’s jurisprudence has been both progressive and bold, operating in a region where adherence to national sovereignty is particularly strong, even in an autocratic sense.31 Conscientious civil society organizations and Congolese citizens can start bringing cases pertaining for example to Sicomines’ emissions before the EACJ in case DRC courts and tribunals are compromised.
At the international level, it may help that we start conversations regarding how a home state of a transnational corporation (TNC) should be liable for the emissions of its TNC in a host state. To operationalize this, states might consider adopting at one of the upcoming COPs what I have elsewhere argued for and called “Trans-Nationally Determined Contributions (TNDCs)”. By TNDCs, I have meant that a TNC’s home state (China in our case) commits to account for the CO2 emissions that its TNC (Sicomines to a significant percentage) is responsible for in a host state (the DRC).