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18 PROFITS AND LOSS Mining and human rights in Katanga, Democratic Republic of the Congo The Committee on Economic, Social and Cultural Rights has also made clear the need to protect children from all forms of work that are likely to interfere with their development or physical or mental health. 87 These provisions on the rights to work and health apply to all workers, including those who are self-employed and/or working in the informal economy. However, although artisanal mining is recognised in the DRC’s legal framework for mining and has been, as noted above, encouraged by the DRC authorities, there are almost no legal provisions in place to protect artisanal miners as workers. In 2002 the DRC put in place a national labour law - the Code du Travail (Labour Code). This contains several provisions on health and safety at work, but it does not explicitly refer to informal workers, such as artisanal miners. Moreover, the mechanism for enforcement appears to be very weak. 88 The Mining Code imposes environmental and other obligations on artisanal miners but contains almost no provisions which protect their labour rights. 89 The Code’s only reference to labour rights is a prohibition on people under the age of 18 working as miners, a provision that – at Tilwezembe – did not appear to be enforced. SAESSCAM is supposed to ensure the safety for artisanal miners and help them improve their techniques to increase productivity. It is also supposed to keep a record of incidents of deaths and injuries. 90 However, as far as Amnesty International could discover, this is rarely done in practice. A number of injured miners interviewed at Mwangeji Hospital in Kolwezi in October 2011 told Amnesty International that SAESSCAM did not provide any support to them even when they had been injured. Although the DRC authorities have established some mechanisms, such as SAESSCAM, to address the conditions of artisanal miners, these are clearly insufficient. In these circumstances the working conditions at Tilwezembe constitute a violation of the right to safe and healthy working conditions. Effective regulation of artisanal mining is needed to protect workers both from exploitation and risks to health. At the same time, while ensuring safe working conditions in the informal sector, the authorities should acknowledge that this is often the only means by which people can earn a livelihood to realise their economic and social rights, such as access to food, education and health, given the lack of availability of formal job opportunities or adequate social security provisions. In addition to the violations of the rights to work and health, the security system being implemented at the site has exposed artisanal miners to serious abuses, including arbitrary and unlawful detention. 91 In the case of Isaac Muzala, State authorities have failed to properly investigate his death, despite the efforts of his family. None of the human rights violations or abuses at Tilwezembe, documented above, has been addressed. Amnesty International June 2013 Index: AFR 62/001/2013
PROFITS AND LOSS Mining and human rights in Katanga, Democratic Republic of the Congo RESPONSIBILITY OF COMPANIES SOURCING MINERALS IN KATANGA All companies have a responsibly to respect human rights. This means that they should avoid infringing on the human rights of others and should address negative human rights impacts with which they are involved. As noted previously, the UN Guiding Principles on Business and Human Rights make clear that “The responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. It exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations, and does not diminish those obligations. And it exists over and above compliance with national laws and regulations protecting human rights.” 92 The UN Guiding Principles also note that business enterprises may be involved with adverse human rights impacts either through their own activities or as a result of their business relationships with other parties. 93 In the case of the Tilwezembe mine – and many other sites where artisanal miners are working in dangerous and exploitative conditions – a range of companies are involved, some more directly than others. While artisanal miners are not direct employees of any company, those companies that purchase from them (directly or via a cooperative) are in a business relationship with the miners and the associated mining cooperatives, and the UN Guiding Principles make clear that such companies have human rights responsibilities. Misa Mining’s position that it has no responsibility in respect of the conditions at Tilwezembe is not tenable. While State agencies, such as SAESSCAM, were failing to ensure mining conditions were safe, Misa Mining was operating on the Tilwezembe site and purchasing from the artisanal miners. The company’s physical presence on the site means it cannot credibly claim to be unaware of the prevalent working conditions, which had been documented by NGOs and the media. The UN Guiding Principles on Business and Human Rights note that “Questions of complicity may arise when a business enterprise contributes to, or is seen as contributing to, adverse human rights impacts caused by other parties. Complicity has both non-legal and legal meanings. As a non-legal matter, business enterprises may be perceived as being “complicit” in the acts of another party where, for example, they are seen to benefit from an abuse committed by that party.” The basis of Misa Mining’s commercial activity at Tilwezembe was the procurement of ore from artisanal miners, who were working in appalling conditions. The actions that Misa claims to have taken (meetings with the cooperative on working conditions and a board prohibiting the entrance of children and women) suggest that the company accepts that it bears some responsibility for conditions on site; however, these actions did not prevent the company from benefiting from exploitative working conditions. In addition, there are serious, but unanswered, questions about the death of Isaac Muzala and the role of a Misa agent in the events of the night of 24 September 2011. Regardless of the failures of the DRC authorities, as the company on site, and an actor in the supply chain, Misa Mining failed to ensure that its operations were not causing or contributing to human rights abuse. Index: AFR 62/001/2013 Amnesty International June 2013 19
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