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Constitutional Incorporation of the (Collective) Freedom to Govern Mineral Wealth: Comparing the Democratic Republic of the Congo and the Republic of Zambia

Document Cited authorities 1 Cited in Related
Vincent
Date01 February 2020
DOI10.3366/ajicl.2020.0299
Pages1-29
Published date01 February 2020
INTRODUCTION: CONSTITUTIONALISING THE FTD IN AFRICA

All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. (ICCPR, Article 1(2))

All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. (African Charter, Article 21(1))

Access entitlements to land and natural resources as a human right might be said to begin with this article, in both the International Covenant on Civil and Political Rights (ICCPR) and the African Charter. Little discussed as this article is, the author states at the outset that it presupposes collective property rights. A bold claim, evidenced by the phrase, to dispose of ‘their’ natural mineral rights, which is the right to transfer and thus is a right of property. Reframed thus, this article questions whether this collective property right, entrenched internationally, is embedded in the constitutions of the Democratic Republic of Congo and the Republic of Zambia

Many countries in Africa have a unique opportunity to operationalise the ‘freedom to dispose of one's natural mineral wealth principle’ (FTD principle) given the rise in new constitution-making.1 Of predominance in discussions surrounding the making of new constitutions is the question of land control and acquisition, particularly where it concerns the potential passing over of decentralised control to government.

In the past, African constitutions have relied ‘on judicially enforceable rights as the mechanism for checking authoritarian uses of power’2 rather than implementing serious constitutional structural reform.3 Law came either from the president or in the form of delegated executive law-making which is not subject to extensive judicial review, public consultation or transparency.4

However, constitutionalism may be gaining ascendancy in many countries in Africa. Respect for the constitution as being above the government and unable to be changed by the government was expressed in an interview with the former President of Ghana, John Agyekum Kufuor, in 2010. Kufuor did not believe, when asked about whether he could change the constitution to extend his tenure, he had the power to do so. ‘My message to my brothers is that since all of us come to power through a constitution, respect the constitution as an article of faith. Respect the constitution, otherwise we betray Africa.’5

The FTD principle reflects the tension between individual and collective entitlements, most particularly where it concerns property.6 This current conflict between collective and individual rights is not only reflected in but hugely important for Africa. The particularly rural reality for many countries in Africa is that exclusive land use or privately held land title is not customary. ‘Collective tenure is fundamental to most indigenous pastoralist and hunter-gatherer communities, and one of the major requests of indigenous communities is therefore the recognition and protection of collective forms of land tenure.’7 Unfortunately, ‘adherence by many states' legal systems to individual property rights collides with communal land tenure of most indigenous groups which remains overwhelmingly constitutionally unprotected.’8 On some occasions, individual property rights have had drastic effects upon customary land access regimes.9

[P]astoralist and hunter-gatherer communities have only, to a very limited extent, legal titles to their land as their customary laws and regulations are not recognized or respected and as national legislation in many cases does not provide for collective titling of land.10

Without formal title, many peoples are forcibly expelled from their traditionally occupied lands.11 No legitimate claim can be made for entitlement to land on the basis of an alternative ontology of land, such as historical ties or environmental custodianship. In alternative ontologies, concepts of property, possession and ownership play no role.12 Alternative ontologies see people as the custodians of resources13 rather than the possessors and land as an integral part of culture and society, informing an attachment beyond the superficial and commercial. The value of land derives from its place as a source of spiritual, religious, cultural or environmental connection and beauty. Such understandings of humanity's relationship to land have no role for individual ownership

Moreover, the laws of the African cosmogony do not allow such ownership. Neither the land, nor the sky, nor the sea, the pillars of the universe and shelters of the ancestors, can belong to a man. All the lands together make up the patrimony of the community, having been put at men's disposal by God, to enable them to subsist, and so that the race can survive.14

 An individualised conception of land, ‘the commodity view of land promoted by officials and proponents of formalization competes with a different social vision of property as primarily a means through which social responsibilities are met’.15 The private property market imbues land with values that only a market would ascribe to it: necessarily a monetary rather than a cultural or social value. In communities where land is transferred through social networks, land has social value more than economic value, something which a land market under the private property system does not accommodate. The private property conception of land struggles to incorporate ‘broader and dynamic social processes and institutions that shape property relations by constantly balancing between various competing claims and values, rights and obligations.’16 Rather than being insulated (kept away from the purview of the market) these aspects are largely ignored (they are considered externalities). The current forgetfulness of the reality of communal rights in Africa does not belie the importance of the collective to defining ‘people’. Thus it is vastly important that collective entitlements and legal standing are recognised constitutionally. Constitutional recognition of minority collectives is a first step in creating a better representation of these collectives in societies.17 CONSTITUTIONALISM AND MINERAL WEALTH IN AFRICA

‘Africa's “constitutional moments” have attracted little notice or interest from comparative constitutionalists.’18 A constitution is the governing and most important document of any land and its peoples,19 all-important in articulating the exact rights and responsibilities of government, foreigners and locals alike. If entrenched in the primary law of the land, derogation from entrenched rights should prove more difficult in time. Moreover, constitutions are more difficult to avoid than are statutory laws for foreign enterprises which seek to profit off Africa's mineral wealth. Corporations engage in ‘regulatory bargaining’,20 arguing for less stringent environmental and social regulations to gain greater investment incentives. This deprives the people of the host country the ability to participate in public policy decisions: what Reed calls ‘public policy autonomy’.21 Furthermore, constitutions are – or ought to be – difficult to change and therefore more insulated from cronyism. Examining African constitutionalism, where governmental authority is subjugated to a higher law,22 is perhaps unusual, particularly without examining other government-derived legislation or case law. However, the substance, security (longevity) and long-term value of these other laws are dubious at best where the effectiveness of the judicial system itself is doubted.23 Finally, the ease of disseminating and educating the public on their legal freedoms using one document would arguably be far easier than disseminating and educating on a raft of insecure laws. Thus it is the most appropriate starting point for examining the fundamental nature of the freedoms of the mostly ‘rural citizenry’24 and obligations of the state.

There needs to be ‘firmer structural and institutional foundations for constitutionalism’25 in order for any true advancement of the people's freedoms. Little comparative analysis has been done on Africa's constitutions.26 Much of the literature on conflict in Africa tends to focus on analysing one country in depth which, while interesting, amounts to anecdotal evidence in relation to the region, rather than a fundamental trend. Looking across several geographies at the question of access and control over land may affect both the qualitative and quantitative study of conflict in Africa. There is an opportunity to recognise patterns and commonality across countries that could inform the debate about resource conflict. Comparative methodology provides a pan-country approach which is important because it lends credibility to concepts being applied cross-country.

Constitutional provisions regarding mineral access rights are examined in the Democratic Republic of the Congo (DRC) and the Republic of Zambia. The DRC is a resource-rich country, still in the stages of conflict over mineral control. The contestation of mineral resources is an important complicating factor in the land access debate in the DRC, contested since before independence in 1960 and continuing to be contested by a bevy of foreign and local interests, which has thwarted the efforts of Congolese governments to assert control over its territory and mineral wealth. According to Cornwell:

The issue of land rights remains politically fraught, and the ability of the central state to enforce its will in this regard will probably be affected by local balances of power for some time, imparting a measure of expediency to the execution of policy. Rights to, and the allocation of, such rights have...

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