Republic of Congo 2011
The Republic of Congo covers an area of some 342,000 km2. It has an estimated forest cover of 22,471,271 hectares (or approx. 2/3 of its total area) and a deforestation rate of 0.08%.
A 2007 estimate put the Congolese population at 3.8 million inhabitants. This is made up of two different groups of people: the indigenous peoples and the Bantu. There has been no systematic census of the Congo’s indigenous peoples, but the 1984 census established that they accounted for 2.29% of the population.1 They include the Bakola, Tswa or Batwa, Babongo, Baaka, Mbendjele, Mikaya, Bagombe, and Babi, and mainly reside in the departments of Lékoumou, Likouala, Niari, Sangha and Plateaux.
The indigenous peoples are traditionally nomadic or semi-nomadic hunter-gatherers, although some of them have now become settled and are employed in farm work, livestock raising, commercial hunting or as trackers, prospectors or workers for logging companies.
Legislative texts that form the legal framework applicable to indigenous peoples include: the Law on Wildlife and Protected Areas, the Law on the Forest Code, the Law on Environmental Protection, the Law establishing the general principles applicable to state land and land regimes, the Law on Agricultural Land, and the Decree establishing the conditions for the management and use of forests.
In 2011, the Republic of Congo became the first country in Africa to promulgate a specific law on indigenous peoples: Law on the promotion and protection of the rights of indigenous populations in the Republic of Congo 2. The Republic of Congo has not ratified the ILO Convention 169 but it voted in favour of the UN Declaration on the Rights of Indigenous Peoples in 2007.
The situation of indigenous peoples in the Republic of Congo
Congo’s indigenous peoples suffer discrimination in such major areas as access to education, health and employment. In this latter case, the discrimination is often flagrant: the work or service provided by an indigenous person is not duly remunerated and sometimes the person is even forced to provide the service for no payment at all.3 Traditional forms of slavery still exist among the Congo’s indigenous populations, alongside practices similar to slavery and forced labour, although officially such practices are denied.
In addition, indigenous peoples have virtually no representation on village or neighbourhood committees, or on municipal or departmental councils. Those indigenous representatives who are appointed to formal bodies such as village committees, consultation committees, etc. often have no possibility of being involved in the decision-making. Indeed, in the village committees, their role is limited to receiving instructions from the Bantu and relaying them to the indigenous community.
Villages inhabited only by indigenous peoples are not recognised by the administration. They are instead considered as districts of Bantu villages, even if these latter have fewer inhabitants. Few of them possess civil registry documents.
It is difficult for indigenous communities to access basic social services (drinking water, electricity, medical care, schools…) and they are often unaware of their rights or, indeed, of the justice system, and thus are unable to claim these rights or defend themselves.
The land law disregards local land management mechanisms. In general, the Congolese population recognises the Bantu land and village chiefs as the main customary authorities involved in allocating land and resolving land conflicts. Moreover, according to the law, only registered lands are considered private property. Registration is a very complex and expensive procedure done in three steps: first it has to be acknowledged by an ad hoc customary land rights’ commission chaired by the sub prefect, then it has to be recognized by a customary land rights’ commission chaired by the president of the departmental council and finally it has to be registered at the land title registry office. This registration procedure is technically and financially out of reach for indigenous peoples. The way of life of indigenous populations, along with their traditional use of land and natural resources, is not taken into account in the land law and therefore the land law does not protect land and natural resource rights for the indigenous population4.
Even though the Law on the promotion and protection of the rights of indigenous populations counteracts the injustices of the land law, it is not yet being enforced because neither the indigenous people themselves nor those responsible for its application are fully aware of the law and no implementing regulations have been issued.
Legislative events and processes affecting indigenous peoples
Revision of codes
The Republic of Congo has commenced a process of revising some of its legal texts, including the Family Code, the Criminal Code and the Code of Criminal Procedure. Committees have been established for this purpose but the process has, however, been temporarily suspended. This means that the legal gaps of these instruments in terms of indigenous rights will remain for the time being.
The effectiveness of the Poverty Reduction strategy document
The Poverty Reduction Strategy Document (PRSD)5, approved by Decree No. 2008/944 of 31 December 2008, does take the specific features of the country’s indigenous population into account. The consultations conducted with regard to this vulnerable category when producing the document did not, however, follow principles of free, prior and informed consent. In a report published in June 2010 on the situation of the right to food in the Congo, RAPDA6 emphasised that the indigenous population remained the poorest sector of society.
Law on the rights of indigenous populations
In 2011, the President of the Republic of Congo promulgated Law No. 5-2011 of 25 February 2011 on the promotion and protection of the rights of the indigenous populations of the Republic of Congo following a participatory process that lasted almost eight years.
This law, which was produced by the Ministry of Justice in collaboration with civil society and with the involvement of the indigenous community, is the first in Africa of its kind and expectations among indigenous organisations and civil society organisations are high with regards to its impact on diminishing marginalisation and discrimination of indigenous peoples.
There is, however, one challenge that will need to be overcome if this law is to be effective: all those involved, both those responsible for applying the law and the indigenous peoples themselves, need to be made aware of the legislation. The indigenous peoples need to make it their own if they are to be able to use it to their advantage.
The National indigenous Peoples’ Network (RENAPAC)
In 2007, through the Ministry for Sustainable Development, Forest Economy and the Environment and UNICEF, and in partnership with civil society, the Congolese government facilitated the creation of the National Indigenous Peoples’ Network (RENAPAC). This network has enabled indigenous NGOs to organise and to better coordinate their activities.
The weak capacity of those involved in organising this structure in terms of their ability to independently implement their activities should, however, be noted. Their ability to design, produce and implement projects is a challenge that will need to be overcome. They also need to take up ownership of the Law on indigenous peoples in a more forceful way.
The International Forum for the Indigenous Peoples of Central Africa
In 2007, at the initiative of the Congolese government, the Central African countries created the International Forum for the Indigenous Peoples of Central Africa (FIPAC), the second meeting of which took place in March 2011 at Impfondo in Likouala department.
This forum had the potential for facilitate an exchange of experiences between indigenous peoples, Central African governments and the international institutions but, in truth, it has become more a folkloric and touristic event. Most of the indigenous peoples involved do not see what benefits this meeting offers. Moreover, there is no follow-up mechanism to ensure implementation of the forum’s recommendations.
The FLEGT VPA process and indigenous peoples
The European Union has finalised the process for forest law enforcement, governance and trade (FLEGT) through an action plan the implementation of which requires the signing of voluntary partnership agreements (VPAs). This process, which the Congo has been involved in since June 2007, culminated in the signing of an agreement in May 2009.
Civil society was involved in the negotiation process through the Sustainable Forest Management Platform.7
Several legal texts will need to be promulgated for the implementation of this agreement, particularly with regard to consultative and participatory forest management and community forests.
Although civil society contributed to the negotiations, there was a notable lack of consultation of the indigenous communities in this process. There is therefore a fear that, in the context of implementing this agreement, the anticipated legislative reforms may also be brought in without the knowledge of the indigenous people, for whom the forest forms their natural living environment.
The REDD+ process and indigenous peoples
In October 2008, the Republic of Congo was selected as one of the countries to participate in the Forest Carbon Partnership Facility (FCPF).8 A national plan for participating in the mechanism (Readiness Preparation Proposal/R-PP) first had to be produced. The REDD National Coordination was established in August 20099 and the official launch of the REDD+ preparation process took place in January 2010.
Civil society did contribute to producing this R-PP through the Sustainable Forest Management Platform. Its proposals were often not taken into account, however, and there was no effective consultation. Indigenous rights issues were often the subject of controversy and the principle of free, prior and informed consent, as enshrined in international texts, was not taken into consideration in the World Bank directives, which are not in line with international standards on indigenous rights.
The Republic of Congo’s RPP was approved, with amendments, on 29 June 2010. The government was asked to consult further with civil society and the forest communities. The Congo is currently at the stage of producing its national REDD+ strategy.
The process as it stands is moving too fast and is not enabling civil society and the local communities to provide their contributions under the best conditions. It is clear that a REDD+ strategy will only be effective if the local communities and indigenous populations are closely involved; yet these communities will find themselves unable to cooperate in a REDD+ strategy unless they also gain benefits from it. With the current state of lack of formal recognition of the customary land rights of indigenous populations, however, the REDD process runs the risk of failing to resolve the poverty problem of the country’s indigenous peoples10.
There is an urgent need to create a context favourable to the eradication of all forms of discrimination suffered by indigenous peoples and to enable them to enjoy their fundamental rights. From this perspective, it is essential that the legal arsenal in this regard is reformed in line with national and international legislation. The implementing regulations for the Law on the promotion and protection of indigenous populations in the Republic of Congo need to be adopted as a priority. A law that has no implementing regulations will be ineffective, inapplicable even. These implementing regulations need to be drafted participatively, in consultation with civil society and the indigenous communities.
Once implemented, this law should be able to resolve many of the problems noted in this article, namely:
- The abolition of slavery, practices similar to slavery and forced labour;
- The participation of indigenous populations in decision-making with regard to policies that directly or indirectly affect them;
- The enforcement of the indigenous peoples’ right to land and to natural resources;
- The requirement to respect the free, prior and informed consent of indigenous peoples before implementing any project or programme that has an impact on their culture, their way of life or their territory.
In a letter sent to the Congolese Observatory for Human Rights (OCDH) in February 2012, the Ministry of Justice and Human Rights stated that the implementing regulations were in the process of being drafted and that consultations would take place as soon as possible.
In addition, the government has a duty to conduct an awareness raising campaign with regard to the law, particularly aimed at the indigenous peoples themselves and those responsible for implementing it.
Notes and references
1 If this percentage is applied, the indigenous population comes to 84,783 members.
2 Law No. 5-2011 of 25 February 2011 on the promotion and protection of the rights of indigenous populations in the Republic of Congo
3 Rapport Peuples Autochtones de la République du Congo: Discrimination et esclavage, OCDH, November 2011.
4 Etudes sur les droits fonciers des populations forestières, Forum pour la gouvernance et les droits de l’Homme (FGDH) and Rainforest Foundation UK, August 2010
5 Poverty Reduction Strategy Document for the Republic of Congo, January 2007
6 African Network for the Protection of the Right to Food.
7 Network of more than 20 Congolese civil society organisations working in different areas such as human rights promotion, indigenous rights, biodiversity protection and local development. OCDH is a member of this platform.
8 The Forest Carbon Partnership Facility, created by the industrialised states and run by the World Bank to contribute to mitigating climate change.
9 It comprises a WCS representative, the national coordinator and his/her assistant.
10 Analyses et commentaires sur le R-PP de la République du Congo, Plateforme pour la gestion durable des forets, November 2010
Roch Euloge N’ZOBO is a programme coordinator at the Human Rights Observatory of Congo (Observatoire Congolais des Droits de l’Homme – OCDH). He has been, for many years, working for the rights of indigenous populations and was very active in the drafting of the law on the rights of indigenous peoples in the Republic of Congo.