Introduction
The Law on the Protection and Promotion of the Rights of Indigenous Pygmy PeoplesFootnote 1 was adopted by the Democratic Republic of Congo’s (DRC’s) Parliament in April 2021, and then became law in November 2022. Until this point, the collective ownership of land was largely unrecognized: with Indigenous Peoples’ occupying lands they did not “legally” own and over which they had no enforceable rights (Ubink, Reference Ubink, Ubink, Hoekema and Assies2009). The precariousness of customary land tenure in the DRC has contributed to the persistent poverty experienced by Indigenous Peoples. Without secure rights to land, the survival of Indigenous Peoples has been, and continues to be threatened.
In addition, Indigenous Peoples were largely unrecognized as distinct legal peoples with unique rights in the DRC. Indeed, the country has for many years contested the adoption of specific laws for protecting Indigenous Peoples and securing their land rights.Footnote 2 The mobilization and advocacy of non-government organizations (NGOs) and Indigenous Peoples led to the adoption of the Law on Indigenous Peoples in 2022, but there remain many deep-seated barriers to the implementation of this law.
The DRC asserts ownership to all lands in the country. The state does allow, on a discretionary basis, Indigenous communities to exercise some access and use rights to their lands through various institutional mechanisms, including individual titling and registration. However, legal gaps and loopholes mean customary tenure is seldom recognized and titled, and the result is that Indigenous Peoples have pursued an alternative pathway to have their land tenure strengthened (Ubink, Reference Ubink, Ubink, Hoekema and Assies2009).
This pathway consists of statutory opportunities to secure customary rights over forests and forest lands through the local communities’ forest concessions (CFCLs).Footnote 3 The CFCLs have been the main option for Indigenous communities to secure some form of collective property rights over lands and resources. The CFCLs are one of the most ground-breaking legal developments in the Congo Basin rainforests in recent years.
While there is much to celebrate with the CFCLs, there are major shortcomings in the current legal framework, including bureaucratic constraints and “red tape,” institutional gaps, a lack of legal representation and gender mainstreaming, and the ongoing problem of elite capture (Rainforest Foundation UK, 2014).
This chapter first explains the concept of Indigenous Peoples in the DRC, and explores the nation’s historical background to land tenure. The chapter then examines how various legal and institutional mechanisms support the recognition and reclamation of Indigenous Peoples’ land rights. The chapter further explains how CFCLs emerged as an alternative pathway to secure some form of rights to customary lands in the DRC, drawing on a successful example from Kasai-Central province in reclaiming lands. Despite this success, the CFCLs do not offer a strong form of land tenure, and the chapter reflects on ways to strengthen the recognition and reclamation of Indigenous Peoples’ land rights.
Indigenous Peoples and the DRC
The Baka, Bambuti, and Batwa peoples are recognized as the first inhabitants of the DRC – they are the nation’s Indigenous Peoples.Footnote 4 In many instances, they continue to live in close connection to their lands. From 2000 BC onwards, other groups such as the Bantu, Nilotes, and Sudanese also migrated to this territory, where they set up the Kongo, Luba, and Lunda kingdoms. Indigenous Peoples often sought refuge in the equatorial forests (Musafiri, Reference Musafiri2009).
The Baka, Bambuti, and Batwa peoples have, for political and other reasons, been referred to as “Pygmy” peoples and nomadic hunter-gatherers by those who came after them – the Bantu, Nilotes, Sudanese, and then the Europeans with the goal of dispossessing them of their lands, such as under the concept of terra nullius (Barber, Reference Barber2022).
Unlike the typically agricultural and pastoral-based Bantu, Nilotes, and Sudanese societies, the Baka, Bambuti, and Batwa do not have structured chieftainships; rather, they have kinship-style systems and relationships to land connected to the spirits of their ancestors. Land ownership and access are based on family lineage and social groupings. Areas for hunting and gathering tend to be extensive and overlap with other uses and users. Traditional Indigenous society has been characterized as essentially egalitarian. Men are born heads of family, while women manage household resources and decide on important family matters. At the group level, decisions are made on a consensus basis and elders are acknowledged and respected for their wisdom (IWGIA, 2012).
Until the 1950s, the Baka, Bambuti, and Batwa lived as nomadic hunter-gatherers, dependent on the forest or savannah and its produce. Many Indigenous Peoples today reside in permanent settlements away from their lands, a result of the expansion of agriculture, logging and mining concessions, and the creation of protected areas and other nature conservation initiatives. Evicted from their ancestral lands, many of the Baka, Batwa, and Bambuti have ended up as landless squatters on the outskirts of Bantu villages, increasingly dependent on a cash economy to which they have very limited access (IWGIA, 2012). Sedentarization also means acculturation and the loss of social and cultural identities.
Today, the DRC is a multi-ethnic country with some 250 ethnic groups. The exact number of Indigenous Peoples in the DRC is unknown, but official estimates suggest they number around 600,000 people, or one percent of the total population. NGOs estimate that this number is likely around one million Indigenous Peoples. Between 30,000 and 40,000 Indigenous Peoples live in the forest as nomadic hunter-gatherers or in semi-nomadic or sedentary communities. A sizable number of Indigenous Peoples live as internally displaced persons in the still conflict-ridden eastern part of the country (IWGIA, 2012). Indigenous Peoples more often experience poverty in the country, and they are more likely to suffer from weak livelihood conditions, are regularly exposed to human rights violations, and continue to be neglected in forest governance issues. Indigenous Peoples are more likely to lack access to health care and education. They are the victims of pervasive discrimination, have no political representation at the local or the national level, and their traditional cultures are at serious risk (IWGIA, 2012).
Dispossession
The treaties must be as brief as possible … and in a couple of articles must grant us everything.
The arrival of Europeans saw them signing treaties and other agreements with the Kings or Chiefs of the Bantu, Nilotes, and Sudanese – marginalizing the Baka, Bambuti, and Batwa and dispossessing them of their lands and resources (Musafiri, Reference Musafiri2009). While large parts of the DRC remain under customary governance and ownership (Land Portal, 2020), these systems are often ignored and conflict with the DRC’s asserted sovereignty. There have been three defining periods of land tenure: first, the period of the Congo Free State (CFS) marked by the exploitation of the colony’s resources for the exclusive benefit of King Leopold II (1885–1908); second, the colonial period characterized by the transfer of the CFS to Belgium, as an official Belgian colony (1908–1960); and third, the post-colonial period, marked by the independence of the DRC (1960 to present). All three periods show an uneasy co-existence between statutory law and customary law where customary rights are constantly denied or ignored.
The Congo Free State
In 1885, King Leopold II of Belgium annexed the territory that became the CFS, the precursor to the modern DRC. From 1885 and throughout the colonial period, a new land tenure system was established that denied Indigenous Peoples formal legal title to their traditional lands – these lands were terra nullius (or nobody’s land). However, the state legally recognized all land acquired by missionaries and European traders. Remaining land, including forests under customary ownership and use, and land occupied semi-nomadically by Indigenous Peoples, was considered “vacant and without masters” and transferred to the state’s private domain (Kipalu et al., Reference Kipalu, Koné, Bouchra, Vig and Loyombo2016). King Leopold II exploited the country’s natural resources to cover the colony’s running costs and for his own personal economic gain. Rubber extraction was developed to meet growing demand in Europe. An objective of the tenure system was to expand the amount of land classified as “vacant” to allow the CFS to take control. Many forest peoples were dispossessed during this period (Sakata, Reference Sakata, Marysse, Reyntjens and Vandeginste2009).
The doctrine of terra nullius, rooted in the Doctrine of Discovery, meant that colonial powers did not recognize the territorial sovereignty of Indigenous communities, viewing them as societies without proper territorial sovereignty (Gilbert, Reference Gilbert2016). Indeed, in 1885, when the existence of the CFS was formally proclaimed, a number of royal decrees from Brussels declared that all “vacant land” there became the property of the state. There was no definition of what made land “vacant” (Hochschild, Reference Hochschild1998).
The Belgian Congo
The CFS became the Belgian Congo in 1908, and then in 1912 adopted a decree stating that “all ownerless things belong to the Colony, except for respect for customary indigenous rights and what may be said on the subject of the right of occupation” (Hochschild, Reference Hochschild1998). The Great War’s demand for resources intensified the exploitation of the Congo’s forests. Much of the state domain, including large portions of customarily held territories, were granted to companies. The subordination of Indigenous Peoples’ customary land rights was legally established by a 1920 law providing that private land ownership required a certificate of registration from the registrar of land titles (akin to the situation in Australia, western Canada, and New Zealand, see Diamond and Sanderson, this book). Indigenous Peoples’ customary rights could not be registered in this way, which established the administrative basis for dispossession (Ona, Reference Ona, Marysse, Reyntjens and Vandeginste2008). However, the 1908 colonial charterFootnote 5 admitted the legal character of customary law, and Indigenous courts (tribunaux indigènes) could apply customs if they were not contrary to the general law and public order.Footnote 6
The Independent Congo
When the Congo achieved independence under the Fundamental Law of 1960 (the nation’s first constitution), all existing regulations were to remain in force unless repealed. This included the inherited colonial land tenure system, which went unchanged until 1973, when the DRC reformed land ownership by adopting the law on property, land tenure, real estate, and securities,Footnote 7 the basis of the DRC’s current land tenure system. This 1973 law vested ownership of soil and subsoil interests to the state, which also retained ownership of all Indigenous and local community lands expropriated during the colonial era. The 1973 Land Law appears similar to the treaties signed by King Leopold II with local Congo Chiefs in 1884, who gave up their “sovereignty and governing rights to all their territories.” Today, six decades years after independence, lands occupied by Indigenous Peoples are still said to be state-owned land.
Indigenous Peoples in the DRC Legal Framework
The DRC’s 2006 Constitution affirmed the principle of non-discrimination: that is, all people are equal to other peoples; they have the right to be different, and to be respected in their difference.Footnote 8 The DRC endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007, and is state party to various regional and international human rights instruments, including the African Charter on Human and Peoples’ Rights,Footnote 9 the Convention on the Elimination of All Forms of Racial Discrimination,Footnote 10 and the Convention on the Elimination of All Forms of Discrimination Against Women,Footnote 11 among others. Despite these commitments, Indigenous Peoples continue to face discrimination, and are subject to extreme economic, social, cultural, and political inequality. Indeed, while there has been intense activity at the international level to ratify these human rights instruments, the Congolese government has done little to implement them in practice, and until the most recent Indigenous Peoples’ protection laws, were referred to as “local communities.”Footnote 12
The 1973 Land Law, and the national land use planning framework, did not recognize Indigenous Peoples and their customary rights. The 2002 Forest CodeFootnote 13 provided a definition of “local communities” referred to as “a population traditionally organized on the basis of custom and united by bonds of clan or parental solidarity that form the basis of its internal cohesion. It is also characterized by its attachment to a specific terroir.”Footnote 14 The Congolese legislature has expressed a certain suspicion towards the rights of minorities or vulnerable groups, similar to some of the debate and misconceptions around the concept of “Indigenous” in the African context more generally (ACHPR and IWGIA, 2006). The most common reasons to justify this mistrust are, among others, the principle of the indivisibility of the state and the promotion of national unity.
The term “Indigenous Peoples” is used to draw attention to and alleviate the particular form of discrimination these peoples suffer in the DRC. The chief concern of Indigenous Peoples in the DRC is not just to simply claim first inhabitant status – but for the recognition of their basic human rights, and rights of access to land and natural resources (ACHPR and IWGIA, 2006), and in turn, to seek protection in international human rights law and moral standards.
The UN Human Rights Committee’s concluding observations on the DRC expressed concerns about the generally precarious situation and vulnerability of Indigenous populations:
The Committee is concerned about: (a) the overall situation of insecurity and vulnerability of Pygmy communities; (b) reports that these communities are discriminated against, particularly in the areas of health care and education; and (c) the State party’s position that indigenous peoples are subsumed under the category of “local communities” in legislation, particularly in the Forestry Code. It is also concerned at the delay in adopting the law on the rights of indigenous peoples.
The Committee expressly recommended that “legislation recognising the rights of the Indigenous Peoples be put in place as soon as possible.” In recent years, the DRC has reviewed its position on “Indigenous Peoples,” which is now accepted and endorsed by the government, and adopted in law as well as in climate change-related programs.Footnote 15
Land Rights: A Legal Vacuum
The 1973 Land Law provided access to land for all individuals and legal entities, whether Congolese or foreign nationals. However, it left open the question of securing the customary land rights of local communities, providing that this would be resolved at a later date by presidential decree (Koné, Reference Koné2017). According to Article 389 of the Land Law, “the rights of use of these lands, duly acquired, shall be regulated by decree of the President of the Republic.” Although the Land Law considered this issue of customary rights in 1980, the presidential ordinance was never drafted, leaving customary land rights holders in a legal position akin to rights of occupation only (Mpoyi, Reference Mpoyi2013), an oversight that has never been addressed by various governments since then (Battory & Vircoulon, Reference Battory and Vircoulon2020). This situation creates tenure insecurity for customary rights holders who depend on the forest for their livelihoods (Koné, Reference Koné2017).
This “tenure” vacuum has maintained dispossession, leaving the door open to forcible land grabs, illegal occupations and coerced sales, and fueling various types of land disputes, including between the Indigenous Peoples and local Bantu communities. This is evidenced by the case of the Batwa people evicted from their ancestral lands in the Kahuzi-Biega National Park in 1975 without their consent. They were dispossessed by a conservation approach that assumed that communities and the preservation of biodiversity are incompatible. Following the eviction, the DRC state failed to protect the Batwa from entrenched discrimination, and to provide alternative lands or access to basic public services. There has never been formal acknowledgement of the injustice of this dispossession, of their forced expulsion, or any compensation and reparations. They continue to live landless and in poverty and are frequently criminalized for their subsistence activities. As part of a review of the status of Indigenous Peoples in Africa, the African Commission on Human and Peoples Rights (ACHPR), which reviewed the situation of the Batwa in and around Kahuzi-Biega in 2003, highlighted the consequences of the evictions of the Batwa:
Land should have been given to the Batwa, but this did not happen. Now the Batwa are forbidden to hunt in the park and forbidden to collect park products. They have no food resources or medicinal plants, and the forest is no longer their place of worship. The Batwa have been culturally and psychologically shattered by the loss of their forests.
The Batwa of the Kahuzi-Biega National Park, with legal support provided by Minority Rights Group and Environment Natural Resources and Development, lodged a case for land restitution before the ACHPR in November 2015. The admissibility decision was received as a beacon of hope by Indigenous Peoples and their support organizations (MRG, 2019). By declaring the communication admissible within the meaning of Article 56 of the African Charter on Human and Peoples’ Rights, the Commission found that the domestic remedies provided by the DRC authorities were not sufficiently available, effective or efficient to ensure adequate redress for the violations suffered by the complainants (MRG, 2019). The decision is a big step towards the recognition and protection of the Batwa’s rights, who were evicted from their lands without compensation or restitution (MRG, 2019).
Collective Rights, Individual Titles and State Sovereignty
The constitution recognizes customary land tenure and guarantees rights to individual and collective title acquired in accordance with law or custom. Some estimates suggest that as much as 97 percent of land across the DRC is governed under customary law (USAID, 2010). At the same time, the constitution asserts state sovereignty over land and forests – which is problematic for Indigenous Peoples.Footnote 16 In addition, according to the Land Law, the state is the sole owner of the lands occupied by local and Indigenous communities.Footnote 17 The Land Law stipulates that “the right of utilization of a land is legally established only through a registration certificate of the deed assigned by the State,”Footnote 18 meaning that customary land rights are not clearly affirmed and recognized as a property right in practice. Only those customary rights converted into land titles are recognized, with the certificate of registration acting as an enforceable legal document to which probative value is asserted.Footnote 19
The process for obtaining a registration certificate is relatively long and costly, meaning very few Indigenous communities have taken advantage of it. There are administrative barriers for communities exercising legal capacity in the country because the legal system presumes such rights can only be exercised by individuals; what this means is that many Indigenous communities are prevented from collectively managing property (Smith & Stein, Reference Smith and Stein2020). If communities can enjoy legal personality, they are denied legal capacity under the current legal framework. The distinction between legal personality and legal capacity is merely an administrative device that enables the state to regulate who may exercise their rights, and to what extent, and through what modality they may do so. In practice, the distinction recognizes and at times facilitates the exercise of rights by some groups, while at times calcifying and legitimizing paternalistic attitudes about other groups (Powell & Stein, Reference Powell and Stein2016).
In the case of Kakese Shumbusho Marcel v. Migambi Munyandatwa et al.,Footnote 20 the Tribunal de Grande Instance (High Court) of Goma was asked to settle a land dispute between Mr. Kakese, the applicant, and five members of the Bambuti Indigenous community in Masisi territory, in North Kivu. The applicant was asking the High Court to confirm his ownership rights to a concession of approximately 100 hectares, legally acquired under a certificate of registration.Footnote 21 On the other side, the defendants claimed customary ownership of their ancestral lands, based on customary occupation.Footnote 22
The High Court of Goma was emphatic in its judgement, writing that:
[…] the defendants do not disclose the existence of any title or judgment against this registration certificate. The mere allegation of the enjoyment of customary rights is not sufficient against the existence of a registration certificate. In a sense, Congolese case law holds that “the evidence provided by the registration certificate has an erga omnesFootnote 23 effect, and third parties cannot claim that the rights established therein are ‘res inter alios acta’Footnote 24 against them.”Footnote 25 This is why the registration certificate is enforceable against a person claiming to have customary land rights, even if the title was established by virtue of a contract between the sole holder and the Republic, the person claiming customary rights not being a party to it.
As we can see, the court’s intervention in land disputes does not consider the existing legal and institutional dualism provided for in the constitution; rather the court’s perspective affirms that customarily held land rights are not equal in weight and validity to administratively granted land rights. The provisions of the constitution, the Land Law, and the recent Law on Indigenous Peoples (which took effect in 2022) must be used for implementing and enforcing customary land rights, otherwise Indigenous Peoples in the DRC will continue to face issues with tenure insecurity.
International Agreements and Article 215 of the Constitution
As a civil law country, the DRC’s legal framework for recognizing Indigenous land rights relies on various formal sources, including international treaties (Zongwe et al., Reference Zongwe, Butedi and Mavungu2020). The DRC is a monist state, and as such international treaties are expected to become an integral part of national law upon ratification. According to Article 215 of the Constitution,Footnote 26 ratified treaties and international agreements prevail over Congolese legislation. However, the rigid distinction between monist and dualistFootnote 27 states is not played out in practice. There are some instances where the application of Article 215 is limited in practice, for example, when the Constitutional Court declares that an international treaty or agreement contains a clause contrary to the constitution, and as a result, subjects its application to the review of the constitution.Footnote 28 In addition, Article 214 binds the operation of Article 215 by requiring the domestication of specific types of international treaties. The DRC ratified the African Charter on Human and Peoples’ Rights guaranteeing individuals their property rights, which applies as well to Indigenous Peoples.Footnote 29 In theory, then, the provisions of the African Charter form an integral part of Congolese law, and should therefore be “directly enforceable” in Congolese courts. If there is a conflict, international law prevails over ordinary law.
Also, the rights of Indigenous Peoples have been specifically addressed in the UNDRIP endorsed by the DRC in 2007. The UNDRIP protects Indigenous Peoples against discrimination,Footnote 30 and recognizes their rights to self-determination,Footnote 31 culture,Footnote 32 land,Footnote 33 spirituality or religion,Footnote 34 and health.Footnote 35 The UNDRIP also acknowledges the collective nature of Indigenous rights. Although the UNDRIP is not legally binding, some of its provisions may reflect customary international law. In any case, it is an important step towards setting standards for recognizing and protecting the rights of Indigenous Peoples in the DRC. However, the application of international law in domestic cases is rare and the courts continue to give precedence to registration certificates over communities’ customary rights in land-related conflicts.Footnote 36
The Law on the Rights of Indigenous Peoples
The Law on the Rights of Indigenous PeoplesFootnote 37 was adopted by Parliament in April 2021, and became law in 2022. This new law – the outcome of a huge effort by Indigenous Peoples and civil society organizations – aimed to recognize and safeguard the customary and communal land rights of the Baka, Bambuti, and Batwa peoples, and “fill the legislative void in terms of the protection of the rights of Indigenous Peoples.” The law makes direct reference to obligations under a series of international and regional human rights instruments in its Exposé des motifs (Thornberry, Reference Thornberry2023).
Under this law, notwithstanding the state’s property rights over the soil and subsoil, Indigenous Peoples have the right to the lands and natural resources that they own, occupy or use, in accordance with the applicable law; and no relocation or resettlement can take place without free, prior, and informed consent (FPIC).Footnote 38 Indigenous Peoples also have the right to the full enjoyment of all natural resources, both timber and non-timber, and the benefits of environmental services on the lands they traditionally own, occupy or use.Footnote 39 In addition, Indigenous Peoples may give or withhold consent to any project that may affect lands and natural resources they traditionally own, occupy or use.Footnote 40
While the law has provisions on FPIC relating specifically to displacement, more general FPIC provisions were watered down in the final text. Whereas a previous draft of the text foresaw prior consultation with a view to obtaining consent “for any project affecting the life of indigenous Pygmy peoples directly or indirectly,” as well as “appropriate mechanisms for consultation which take account of their customs, before any elaboration or implementation of administrative or legislative measures,” these provisions have been removed and replaced (Thornberry, Reference Thornberry2023).
An Alternative Pathway to Strengthen Customary Land Tenure
Given that the Law on the Rights of Indigenous Peoples has not taken effect at the time of writing, and the fact that few Indigenous Peoples have formal title to their lands in the DRC, most legal efforts to advance land rights have focused on individual land ownership through land titling and registration. Disappointment with such approaches led to a search for an alternative pathway in land tenure regulation that reconciles customary land rights with those asserted by the state (Ubink, Reference Ubink, Ubink, Hoekema and Assies2009). This pathway is the through the Community Forest Concessions (Concessions Forestières des Communautés Locales or CFCLs).Footnote 41 The 2002 Forest Code sets the legal framework for Indigenous Peoples to manage forests they traditionally occupy, even though they are not the “legal” owners according to state laws.
According to the Decree on CFCLs,Footnote 42 Indigenous Peoples (and local communities) can transform part of or all their customarily occupied forests into a community-controlled and managed concession – the CFCLs. It is, to date, the only legal option for many Indigenous communities to secure some form of recognized collective property rights to their forests – and to protect their lands against encroachment.
A local community’s forest concession is granted to a community by the state, based on customary ownership, to manage it according to their customary laws and traditions, provided the uses are not contrary to existing laws and regulations, and subject to the obligation of applying the rules and practices of sustainable forest management.Footnote 43 Communities with CFCLs can engage in conservation or forestry or any other form of activity. These concessions are allocated upon request by the community, free of charge and in perpetuity.Footnote 44 The first threshold for establishing customary rights is customary occupation. Participatory mapping and land demarcation exercises can provide physical evidence of customary occupation. To date, more than 150 community forests covering three million hectares have already been established, with potentially tens of millions more available to local communities (RFUK, 2023).
The Batwa communities of Tshiefu, in Central Kasaï, hold a land title to their lands dating from the colonial era. They have been supported by the Dynamique des Groupes des Peuples Autochtones (DGPA) and Forest Peoples Programme (FPP) in formalizing this title, and they have also obtained recognized property rights through community forests. Four Batwa communities from Micha, Bondo, Kombe, and Tongonuena have secured 111,760 hectares of community forests in total.Footnote 45 The request was made separately because an Indigenous community can only request up to 50,000 hectares in a CFCL.Footnote 46 Now, with CFCLs, the Batwa of Tshiefu are supposed to be less vulnerable to land grabbing with greater legal standing, and can play a stronger role in forest management. However, community forest “titles” are effectively concessions and not titles of land ownership. While the CFCL can provide some protection against logging and mining exploitation, the level of protection is not as strong as it would be if the communities owned the land (Koné, Reference Koné2023).
In support of their CFCLs, the Batwa have produced maps documenting their customary territory, which are being used for drafting subsequent forest management plans, with the goal of protecting their values and livelihoods. It is important to note that, to date, most of the CFCLs obtained in the DRC belong to Bantu peoples, sometimes to mixed communities (Bantu and Indigenous communities), and only occasionally to Indigenous Peoples – strengthening Indigenous engagement in CFCLs is critical moving forward. Because of the persistence of traditional discrimination and the perception of the subordinate status of Indigenous Peoples, there is a risk that the Bantu will give them a smaller share of the distributed collective resources, especially money (Moise, Reference Moise2019).
Community forestry faces major challenges, including weak community ownership and capacity, and there is ongoing debate over communities’ choices of socio-economic model. For example, should this model be conservation- or market-focused? CFCLs do focus on poverty reduction rather than tenure security, which can lead to forest degradation, and thus undermine the subsistence economy (Moise, Reference Moise2019). CFCLs are governed by the local management committee (Comité de Gestion – CdG), a highly formalized structure with a president, vice-president, treasurer, etc. (Moise, Reference Moise2019). To operate an enterprise, the community must form a cooperative society or a local development committee.Footnote 47 Traditional governance is typically ignored. Most communities have partnerships with outside corporations, which can open the door to corruption and elite capture (Kipalu et al., Reference Kipalu, Koné, Bouchra, Vig and Loyombo2016). Some Congolese NGOs have reported a proliferation of CFCL applications facilitated by foreign NGOs, where the local communities have not been properly informed or consulted and are not fully engaged in the process.
A National Roundtable on Community Forestry was initiated in 2015 to address the risks outlined above, bringing together different stakeholders to develop a common national strategy for CFCLs through consensus. The National Roundtable also serves as a forum for sharing lessons from pilot projects across the DRC, in terms of best practices and in order to identify obstacles to the national CFCLs process (RFUK, 2018).
Conclusion
Apart from CFCLs, there are few examples where Indigenous Peoples in the DRC are successfully reclaiming their land back or registering title. However, the latest Law on the Rights of Indigenous Peoples may remedy this. While the state retains exclusive ownership of land and subsoil resources, these rights are mitigated to some extent by the specific new provisions of this law that aims to give legal recognition and protection to lands and resources traditionally occupied by Indigenous Peoples.
The country’s legal dualism, which affirms customary and state ownership, does not reconcile these, and puts barriers in place to the recognition of customary ownership – for example by requiring cumbersome land title certificates to prove ownership. This means that most Indigenous communities endure tenure insecurity and vulnerability. The CFCLs have been the primary strategy for Indigenous Peoples to secure some form of access and use right to their lands, but are not an end in itself.
For the CFCLs strategy to be effective, Indigenous communities need to be aware, empowered, and possess the capabilities (legal and administrative) to make a request for the CFCLs, which frequently they are not. The CFCLs may offer some form of standing against encroachment of traditional lands; however, they are not focused entirely on commercial forest resources (and thus cannot generate the revenues for communities to pursue land reclamation strategies), and they do not offer security from elite capture or dispossession by more powerful actors. Therefore, CFCLs should not be considered as the end or a miracle solution, but one step on the road to genuine Indigenous land justice in the DRC.
CFCLs should build on existing and traditional forms of organization and governance in Indigenous communities, rather than imposing bureaucratic structures. This approach may create space for genuine participation in CFCL management and decision-making, and could support an equitable sharing of benefits arising from the exploitation of CFCL resources.
Looking forward, how the new Law on the Rights of Indigenous Peoples plays out in practice remains unknown. However, what we understand from previous experience is that a genuine dualism in the country, one that both recognizes and safeguards Indigenous land rights, has proven elusive. Strengthening the land rights of Indigenous Peoples through a meaningful recognition and protection of these rights requires, as a first step, a more supportive and simplified land titling process. This means building an institutional and regulatory framework that can implement and safeguard customary title and ownership, with a space for Indigenous voices in this framework.
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