Section 1502 of the Dodd Frank Act, known as the conflict minerals rule, has been under unprecedented scrutiny by various agencies of the US Government in recent months.
In the last three weeks, the Senate Foreign Relations Africa Subcommittee held a hearing examining the implementation and impacts of the law, and the State Department opened a new consultation period under the guise of soliciting feedback on how to “support responsible sourcing”.
Two weeks ago, after a six-week comment period beginning in February, the Acting Chairman of the SEC Michael Piwowar stated that the most critical sections of the law’s Final Rule – the text that lays out how the law should be implemented by companies - would not be enforced by the agency – apparently without consultation.
These events coincide with attempts at a possible executive action by the President to suspend or revise the conflict minerals rule, a move which would abuse a national security waiver designed only for emergencies.
The 2010 legislation is designed to ensure US companies that use minerals from the Great Lakes region of Africa do not fund conflict or abuses in the Democratic Republic of Congo. It has now been in force for five years and has been the subject of extensive local and international debate, both in praise and criticism of the law.
But while international experts have often been able to air their views in the global media or in Congressional hearings, policy forums and roundtable discussions, the views and opinions of local eye-witnesses who live in the countries covered by the law – those with first-hand experience of the changes it has brought – are often overlooked. This must change.
In the recent hearing three international experts testified to the Senate Foreign Relations Subcommittee on Africa. These are highly regarded individuals who have made wide-ranging contributions to the debate. But it was disappointing at best that a hearing titled “A Progress Report on Conflict Minerals” decided to assess progress from so far away.
Although Senators made sure that the companies directly affected by the law were represented at the Hearing the first-hand views from those living day to day in the Great Lakes region were not represented. No one on the panel had first-hand experience of daily living and working in and around Congo’s mining sector. Ranking Member of the Subcommittee, Senator Cory Booker (D-NJ) briefly raised some of these views, but within the confines of a question and answer session.
Instead of being discussed in the Q&A, this perspective should have defined the hearing.
The strength of opinion about this law by those living in the countries that it covers is undeniable. Congress – and the White House - should take it into account.
The Security and Exchange Commission’s (SEC) most recent public comment period on Section 1502, triggered by Acting Chairman Michael S. Piwowar’s critical statement, received submissions (either individual or joint) from over 100 organisations in Congo and Rwanda, as well as contributions from the Congolese government, the ICGLR (a regional governmental body that represents 12 regional governments) and the Rwanda Mining Association.
The number and depth of these submissions are impressive, especially given the limited accessibility of the SEC’s comment period - which was only formally announced on the SEC’s website and the US Government’s Federal Register, and only in English. Sadly, the State Department’s new consultation follows the same pattern – available on a little used website and only in English (although we’ve been told that French submissions will be considered).
In order for these public consultations to be truly open, inclusive and comprehensive, more effort needs made to ensure those that will be most affected by any changes to the conflict minerals rule, are informed. This includes ensuring that notice for these consultation periods is disseminated through the relevant embassies and that the instructions are translated into French.
Last month, Global Witness researchers visited Rwanda. The reconsideration of Section 1502 came up—unprompted—in almost every conversation, with private sector and civil society alike.
One person involved in mine site monitoring said that, “before, foreign companies could profit from just anything. [Repeal] [i]s like missing the target.” Another stated, “[repeal] will create chaos, it will bring back war.”
Someone working with artisanal miners thought differently, that repeal could “bring fruits” and perhaps increase the price per kilo received by miners toiling at the bottom of international supply chains.
These are the voices and perspectives that must be at the forefront of future decision making.
Public consultation and Congressional hearings are healthy and important opportunities to check whether laws are going in the right direction and achieving their stated goals.
However, the US administration risks undermining its own efforts if policymakers’ evaluation omits the most critical constituency; the people living at the sharp end of this legislation.