A new report published by the Center for Global Development argues that a new American law designed to prevent mining profits from fueling violence in the Democratic Republic Congo has instead contributed insecurity in key regions and hurt local economies.

The Dodd-Frank Wall Street Reform and Consumer Protection Act contains novel provisions aimed at increasing transparency regarding corporate and commercial activities in foreign countries.  When the bill was signed into law in July 2010, Global Witness told IRIN News that armed groups such as the FDLR (Forces Démocratiques de Liberation du Rwanda), the Congolese national army, and the members from the CNDP (Congrès National pour la Défense du Peuple) “make millions of dollars per year by controlling mine sites and illegally taxing the minerals trade.” By compelling companies to change their sourcing practices and publicly disclose information about payments they make for mining rights, civil society groups hope that the “conflict minerals” law, as it is known, will curb violence in this volatile region of Africa.

The law contains three mechanisms designed to deprive militant groups of money used to bankroll conflict:

1. Section 1504 requires companies listed on US stock markets to disclose how much they pay to foreign governments for access to minerals, oil and gas.
2. Section 1502 requires companies to report to the Securities and Exchange Commission if they bought conflict minerals from the DRC or its neighbors.
3. Companies must report on their websites whether they source the principal “conflict minerals” such as columbite, tantalite (coltan), cassiterite, gold, wolframite, or their derivatives from the DRC or its neighbors.

The language was included in the Obama administration’s much broader financial reform package. When President Obama signed the bill into law, he highlighted provisions in Dodd-Frank to create a new consumer protection agency, increase the information available to borrowers about student loan rates, and provide corporate shareholders with information about executive pay.  (He did not mention the conflict minerals provision, though it was considered an important innovation.)

New Critiques of the Ban

Laura Seay, an Assistant Professor of Political Science at Morehouse College who publishes an insightful blog, Texas in Africa,wrote the report for CGD.  She agrees that the law has improved transparency in international markets and reduced the money previously diverted to funding the DRC’s conflicts. But the law has already had significant unintended effects – even though key provisions have yet to formally go into effect.  For starters, she argues that Section 1502 has contributed to massive unemployment.  President Joseph Kabila (pictured left) instituted a wide-scale ban on mining in two eastern provinces, leading to militarized take-overs and additional violence.  Seay argues that the ban would never have been instituted had 1504 and 1502 not passed in the US.

In addition, Seay presents evidence that the Dodd-Frank bill has reduced the overall export of minerals from the DRC.  This effectively makes the ban on Congolese “conflict minerals” an outright boycott thus hurting the lives of many Congolese, including artisans and small businesses.  Finally, she claims that the effective ban has not helped improve overall security of Congolese.  These provocative claims come at a fragile moment for the DRC, where tensions from December’s profoundly flawed elections are still simmering.

The report’s analysis also promotes self-reflection about the role of American and European-based civil society groups in addressing Africa’s challenges. Sections 1502 and 1504 of Dodd-Frank probably wouldn’t exist without a broad solidarity campaign against conflict minerals.  For example, the Enough Project said “The recent passage of provisions on conflict minerals from eastern Congo in the Dodd-Frank Wall Street Reform act has brought unprecedented attention to the linkages between trade in minerals crucial to electronics and other industries and the ongoing conflict in DRC. These provisions have been welcomed by the State Department, the Congolese government, a diverse coalition of NGOs, and by leading companies.”  Those of you in Washington will remember that the campaign was effectively launched via a huge public event at American University.

Exploring Alternatives

The report offers a number of recommendations, including the restoration of provisions (removed from the final version of Section 1502) to provide supplemental assistance to help mining towns cope with adverse effects of Dodd-Frank.  It also proposes security sector reform and direct protection of civilians, rather than targeting conflict minerals.

One component of US security sector reform would likely include International Military Education Training.  If so, several recent investigations should give us pause.  For example the General Accountability Office recently concluded that “human rights training was generally not identified as a priority in the IMET country training” among the 29 plans it examined.  Moreover there was very little follow-up with IMET alumni to assess the impact of their training.  At the very least, this gives Congress some reasons to remain vigilant in monitoring any such assistance.  (As I will detail in forthcoming posts – the record appears to be especially problematic in Africa.)

Opening up Broader Debates

The CGD report re-opens the lively debate with the legislation’s supporters.  Global Witness for example has a detailed rebuttal to “common misconceptions” about the conflict mineral provisions.  It acknowledges short term adverse  impacts on local artisans for example, and argues – accurately in my view – that because the law requires disclosure but does not stipulate penalties for sourcing conflict minerals, it does not amount to a de facto embargo.

In a broader sense, the CGD report’s conclusions about the effects of Dodd-Frank could fuel two broader, worthwhile discussions.   First, the implications for corporate social responsibility will also be closely followed by companies such as Apple, which is facing new criticism after revelations in the New York Times (January 25, 2012, “In China, Human Costs Are Built Into an iPad”) that putting together your iPhone involves under-age labor in factories with 7-day work weeks and serious safety problems – including two recent explosions and hundreds of people becoming ill from working with chemicals. That’s a supply chain I certainly want to know about, and such incidents appeal to the same consumer conscience that conflict minerals did.

Second, if the conflict minerals ban does amount to a boycott, then that returns us (appropriately) to discussions about when and how such international instruments can effect democratic and social change. International boycotts helped bring down the apartheid regime in South Africa for reasons we well know, but a decade of sanctions on Iraq had little effect other than to destroy the middle class and stimulate massive widespread Arab anger towards the West (as Joy Gordon documents in her excellent new book, Invisible War from Harvard University Press.)

I, for one, welcome both of those discussions.

Governance and Development Workshop: Notes on Power-Sharing and Decentralization

As part of an effort to reach out to new constituencies and expand the dialogue with policy makers, the African Studies Association collaborated with the Local Arrangements Committee for the 2011 Annual Meeting to organize workshops the day before the conference formally began. American University’s School of International Service, with generous support from the U.S. Agency for International Development, organized a workshop under the theme “Governance and Development.” The half-day meeting focused on decentralization and power-sharing as two institutional trends deserving some rethinking.

Re-Assessing Decentralization in Africa

One set of discussions focused on decentralization, which was a popular prescription during Africa’s transitions to democracy in the 1990s. Political reformers praised decentralization as an institutional antidote to years of dictatorship and centralization, and also as an engine of the free market.  Development agencies variously embraced decentralization as a means of combating corruption or stimulating participation through community empowerment.

However performance monitoring by implementers and new academic research reveal a mixed empirical record.  This has led to a more cautious and holistic approach to decentralization.  Professor J. Tyler Dickovick from Washington and Lee University served as a lead consultant for a USAID project rethinking and re-researching decentralization, which has culminated in an important study entitled Comparative Assessment of Decentralization in Africa. He is also the author of Decentralization and Recentralization in the Developing World: Comparative Studies from Africa and Latin America. You can download Professor Dickovick’s PowerPoint presentation here.

In addition to the paper describing the overall framework, USAID also commissioned ten studies to assess the status of decentralization in specific countries such Botswana, Ethiopia, Nigeria, Ghana, and Burkina Faso. These studies are based on the academic literature and some fieldwork. Workshop participants raised concerns some about the research design driving the choice of case studies. USAID anticipates that the country studies are effectively “pilots” that will form the basis for more comprehensive future research. Frankly, I find this a refreshing approach to applied knowledge and I hope that USAID’s budget continues to allow them to re-evaluate their thinking on a macro level — taking a step back from (the equally important) performance monitoring and daily drumbeat of proposals.

Richard Asante from the University of Ghana also outlined new research on decentralization coming out of the Institute of African Studies in Legon. The panel was moderated by Gina Lambright, an Assistant Professor of Political Science and International Affairs at George Washington University.  Check out excerpts from her important new book, Decentralization in Uganda: Explaining Success and Failures in Local Governance.

 The State of Power-Sharing in Africa

Professor Scott Gates, the Director for the Centre for the Study of Civil War at the Peace Research Institute at Oslo (PRIO)

A second set of discussions during the workshop centered on power-sharing. These pacts, designed to bring together a broad range of political parties and stakeholders, have become a familiar component of conflict resolution. As I have pointed out in my own research though, recent analyses raise questions about the efficacy and appropriateness of this inclusive governance strategy, particularly when applied as a solution to flawed elections.  Professor Scott Gates, from Norway’s Peace Research Institute in Oslo (PRIO) outlined the principle tradeoffs entailed in Africa’s recent power sharing agreements. You can also download a copy of his presentation, “Fragile Bargains: Civil Conflict and Power-Sharing in Africa.”  Building on the conceptual framework developed at PRIO, he distinguishes between dispersed and inclusive power-sharing and then outlines some of the current problems facing African agreements. You might also be interested in his forthcoming book, edited with Kaare Strøm on power-sharing.

Patrick Hajayandi, a Lecturer at Hope Africa University and a PhD candidate in Russia, delivered an unconventional analysis of Burundi’s power-sharing arrangement. His paper, based on his based on his dissertation, shows how Burndi’s agreement has managed to stop the fighting by bringing rebel groups to the table and empowering disenfranchised communities.  However new regionally-based cleavages are replacing these factional identities, and they pose no less of a threat for peace and stability. While moderating the session, I added that because the power-sharing agreement is based on fixed quotas, even a modest level of change in the proportional distribution of Burundi’s ethnic groups would alter the balance of representation. In a region with a history of huge migrations due to poverty and violence, this is not unlikely.

Imani Countess, NDI Country Director for Zimbabwe and ASA Board Member

Professor Adrienne LeBas raised some related concerns about power-sharing during the discussion. Her importantnew book, From Protest to Parties: Party-Building in Africa (Oxford University Press, 2011) shows how the propensity for violence, and the likelihood of transcending parochial cleavages, depends on the type of authoritarian legacy in Africa’s “hybrid” regimes. Nicolas Cheeseman, the author of another important paper in the Journal of Modern African Studies about the perils of power-sharing in Kenya and Zimbabwe, was also among the many insightful workshop participants. Imani Countess, who is currently the Zimbabwe Country Director for the National Democratic Institute, offered critical notes from the field.

The ASA has issued a call for workshops for the 2012 Annual Meeting in Philadelphia. I hope to see you there…I plan to attend the workshop on African cooking!

The new Tug-of-War Over Oil Sector Reform

For months, a coalition of civil society groups has been urging passage of Nigeria’s Petroleum Industry Bill (PIB).  Early drafts of the legislation promised to increase transparency, for example by expanding compliance with “Publish What You Pay.”  CSOs are now concerned that if the bill is not passed before the new National Assembly is sworn in at the end of May, a critical opportunity for oil sector reform could be lost.  The Africa Network for Environment and Economic Justice, for example, explains in a statement that “existing laws in the sector were shrouded in secrecy due to confidentiality clauses that have over time undermined transparency and accountability in the oil and gas sector.”  Activist actions are planned for the coming weeks to keep the pressure on the Assembly.

The Senate version of the bill, which is likely to pass, contains some notable differences according to an analysis by Aaron Sayne of the Transnational Crisis Project.  This draft:

• greatly limits the role of the Petroleum Minister by reassigning most of his/her key powers and functions to the Board of a new National Petroleum Commission;
• rejects the plan to incorporate government’s six existing joint ventures;
• waters down provisions on contract confidentiality clauses and other measures that would increase transparency;
• cancels plans to create a Petroleum Research Center separate from NNPC;
• strips the Petroleum Products Regulatory Authority of its powers to regulate fuel prices, pricing methodologies and supply, or to set distribution, marketing, and retail tariffs;
• rejects proposals to measure production volumes at the wellhead, rather than at the export terminal, which could make it easier for oil to disappear in between;
• creates a very confusing “10 percent equity” program for communities (see paragraphs 168f of the bill for details)

The bill also deletes provisions relating to “fiscalized crude,” a gas pricing framework based on fair market mechanisms, and most of the language relating to marginal fields, replacing them with much weaker work requirements.  The activist group Social Action, which obtained the bill, has a copy on its website.

Lobbying Behind the Scenes?

During my visit to Edo state in March, Niger Delta activists told me that Shell and other oil companies have been lobbying against the bill behind closed doors.  Above all, the companies are concerned about a potential increase in the Petroleum Profit Tax from 30 to 40 percent.  The revised legislation instead introduces numerous deductions and production allowances which could actually reduce the effective tax rate for the oil companies.  Recent changes to the bill could thus lower government revenues, according to the Transnational Crisis Project analysis.  The oil companies are apparently also concerned that some of the new bureaucracies would splinter the NNPC – and possibly stimulate local competition by creating new competition from local start-ups.

Some activists are also worried about leaving the NNPC dependent on the National Assembly for its annual budget, which affects its ability to borrow and invest under the Fiscal Responsibility Act (2006) and Public Procurement Acts (2007).  However in my view, half a century of vertical fiscal federalism in Nigeria has offered little evidence that automatic funding for agencies outside of the annual budget actually improves accountability.  If anything, it can remove a valuable institutional check on the process.  Absent a tradition of ombudsmen and other robust internal checks, insulating government bureaucracies from the broader political process can undermine the very goal in mind.

Democracy is finally producing some dividends in Nigeria’s impoverished oil-producing state.  In Rivers State, 1 billion Naira is automatically set aside every month for future use and largely insulated from political meddling; other Niger Delta states are seeking to emulate this reform, which civil society claims as a victory.  Which way now for the oil states, and for Nigeria’s national honey pot?

Will Election Appeals Pacify Nigeria’s Protesters?

 Nigeria’s elections in 2003 and 2007 generated literally hundreds of challenges to results at the national, state, and local levels.  (See Nigeria: Tribunals and the 2003 Elections, by the Legal Defence Centre, 2004.)  As these cases weaved their way through courts and tribunals, scholars and election observers pointed to the use of the judiciary as a positive sign for democratic development.  In response to doubts about fairness and concern about their institutional fragility, the courts managed to resolve even the most contentious and high profile cases.  For example in 2007 the Supreme Court challenged the People’s Democratic Party (PDP) machinery, including the obstinate President Obasanjo, when it decided that Vice President Atiku Abubakar’s candidacy for president could stand.  Alex Ekweume fought and lost a similar battle in 2003.

 The following year the Court rebuffed Muhammadu Buhari’s challenge to the presidential election results in a narrow 3-4 decision which produced a scathing minority report.  The decision ultimately stated that the plaintiff had failed to sufficiently demonstrate that the elections were stolen, a logic that failed to offer a positive affirmation for Umar Musa Yar’Adua victory.  A major coalition of domestic observers called it an election “programmed to fail” (Daily Trust, 25 April 2007).  Yet the disagreements played out through the country’s political institutions, leading some members of the Electoral Reform Commission to suggest that perhaps the courts should organize and oversee the elections.

The Courts in the 2011 Elections…So Far

Turning to 2011, the courts on the one hand have again played a constructive role, arbitrating a bitter dispute between the Independent National Electoral Commission (INEC) and the National Assembly legislators.  As in 2002,

Carl LeVan discussing the elections with Chinua Achebe and INEC Commission Jega in December 2010

when President Obasanjo’s lawyers lobbied to have all elections on the same day, the courts this year ruled against legislators who sought to change the sequence of the elections.  By affirming INEC’s authority to determine the sequence of elections, the courts challenged the PDP machinery yet again, undermining the ruling party’s efforts to maximize “coattail effects” by holding presidential elections before the legislative elections.  

In the long run this will improve opposition opportunities – a fact apparently reaffirmed by PDP’s weak showing in the legislative elections held last weekend with the party losing ground in several key states across the country. For example:

• In Ogun state, the Obasanjo “brand name” was defeated in the hometown of the former president.  The daughter of former President Olusegun Obasanjo, Iyabo Obasanjo-Bello, contested the Senatorial seat in Abeokuta in Ogun Central.  She lost in her father’s Ita-Eko, Abeokuta Ward 11 to her Action Congress Nigeria (ACN) counterpart, Gbenga Obadara. While Obasanjo-Bello polled 85 votes, Obadara scored 194. 
• Again in Ogun State, in Governor Gbenga Daniel’s Isote Ward in Sagamu, his PDP Senatorial candidate, Toheeb Odunowo lost to the ACN candidate, former deputy governor of the state, Gbenga Kaka by 121 votes to PDP’s 90 votes.  (PPN scored 118 and Labour Party 27).
• In Kwara State, Ibrahim Yahaya Oloriegbe (ACN) defeated outgoing governor Bukola Sakari (PDP).  In Osun State, Olagunsoye Oyinlola, the former governor of the PDP also lost to his ACN rival while controversial senator, Iyiola Omisore has also lost his seat in vote tallies released so far.  See Sahara Reporters  for a tally of other compelling results.

On the other hand, Muhammadu’s pre-election statement that he did not intend to use the courts should he lose, rang out as a threat that no longer seemed terribly veiled in the wake of the horrifying post-election violence earlier this week.  He eventually condemned the violence, and reversed his pledge to not appeal the electoral results.  Whether the courts can again serve as peaceful arbiters in general depends in part on the ultimate resolution of a bizarre set of decisions on recent electoral appeals – and flaws in the Electoral Act which will likely extend, rather than resolve, such animosities. 

Legal Avenues for Electoral Appeals

The 2010 Electoral Act streamlines the appeals process and shifts some of the burden of evidence to plaintiffs in order to apparently reduce the number of frivolous complaints about electoral results.  However it also provides little guidance on the critical questions related to tenure.  If an incumbent’s election is challenged, who is in charge in the interim?  And more broadly, how much authority do the courts have to decide such matters?

Two sections of the Electoral Act detail the civil procedure for appeals.  First, Section 140 outlines the judicial procedure for bringing an electoral petition, stating:

• “If the Tribunal or the Court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the election will be nullified.” 
• “Where an election tribunal or court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, they shall order a fresh election.” 
• “If the Tribunal or the Court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes they shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.”

Next, Schedule 1(28) explains what occurs following the conclusion of appeal proceedings, stating that “At the conclusion of the hearing, the Tribunal shall determine whether a person whose election or return is complained of or any other person, and what person, was validly returned or elected, or whether the election was void.”  In other words, election tribunals have clear authority to determine the winner of an election.  At that point, “If the tribunal or court has determined that the election is invalid, then, subject to section 138, where there is an appeal that fails, a new election shall be held by the Commission.” 

Though these provisions sound clear enough, the 2010 Electoral Act does not address how such judicial decisions would affect tenure.  More importantly, the Federal High Court in April upheld a decision of a February Abuja High Court decision based on the 2006 Electoral Act (and considering Section 180 of the Constitution relating to tenure) challenged the authority of the courts to determine a winner.

Synchronizing Tenure, and Determining the Winner

This raises two sets of questions.  The first concerns whether a governor who wins a seat after an electoral challenge will be required to run for re-election at the end of the electorally fixed four year term, or if the term of office begins only when the governor is sworn into office.  This is important because with the PDP’s poor showing in the gubernatorial races, allowing governors to being their term when they take the oath has the effect of extending the tenure beyond the official fixed term — and thus conflicting with a fundamental feature of presidential political systems.

The other set of questions revolve around the status of an incumbent who decides to run for re-election.  If an incumbent decides to run for re-election and the re-election is challenged, would the incumbent have a claim to continue in office until the election petition successfully removes him or her? The question is of particular importance when approached from a governance standpoint. Who is responsible for matters of state while the election petition is undergoing judicial review?  If the seat is an open one with no incumbent, then it would make more sense for no one would be sworn in until the dispute is resolved.  For Nigeria’s governors, who control billions of dollars in revenue received from the center, an extended absence of leadership would dramatically undermine governance.

The Electoral Act does not address these questions, which affect at least five sitting governors who are fighting to extend their tenure and whose cases may set legal precedent.  None of the cases promise to simplify INEC’s task or to weaken PDP hegemony.   Comments next week will analyze these cases and put them in the context of Nigeria’s recent constitutional amendments.

Last week Nigeria’s Independent National Electoral Commission called the press corps to announce the figures for the voter registry, which must be must be formally certified no less than 30 days before the election in order to comply with the electoral law.

After a busy day of meetings with visiting international delegations, an inter-agency meeting on security, and a visit to the National Assembly, Electoral Commissioner Attahiru Jega gave one of the most important press conferences of the electoral cycle to a largely empty room.  By the time he arrived, 90 minutes late, virtually the entire press corps had left in protest.  This is unfortunate because the final, official figure of 73,528,040 voters raises a number of important questions which needed to be pre-empted with clear explanations.  INEC missed an opportunity to reassure voters and observers about the credibility and transparency of the unfolding electoral process.

Most significantly, the rolls reflect an increase of approximately 5.7 million voters.  The list is already a matter of debate among non-governmental experts and some in the US Government, the latter doubting how a biometric system could have been implemented so quickly.  Electoral administration expert Robert Pastor from the Center for Democracy and Elections Management has pointed to comparative examples where biometrics were successfully implemented in smaller countries with much better electricity, yet it took considerably longer to reach operational status.  Nigerian journalists who covered the registration process told me that the laptops effectively addressed the power problems by providing backup batteries.

Jega attributes the increase to the process by which the voter rolls where increased: each day INEC staff in the states reported registration numbers from their jurisdictions.  But most of the provisional figures, reported last month, were incomplete because they had not been “consolidated” properly.  Once the math adding up the provisional figures had been re-checked, the voter rolls increased due to what Jega described as “massive under-reporting” during the provisional count.  Even so, the biometric system caught 870,612 duplicate voters, with Niger State having the largest number and Abuja, FCT with the smallest.

At the same time, Niger also showed the largest increase in registration, where Governor Babangida Aliyu from the ruling People’s Democratic Party (PDP) faces some electoral challenges.   In 2007 he won with 443,764 votes and seventeen out of the twenty five local government areas in a three-way race with ANPP candidate, Barrister David Umar, who came in second with 210,359 votes and Alhaji Muhammad Isah Ladan of the AC who pulled 136,590 votes.

In what amounts to a grand experiment in a country with broad skepticism about the electoral process, the INEC press conference did not unveil a printed copy of the voter lists due to the time it would take to produce a hardcopy with 73 million names.

Jega with the final voter registration lists on March 3, 2011

As an alternative, Jega ceremoniously opened up a briefcase (pictured here) with hard drives labeled for eachstate.  The data include gender and other information that will be valuable for analyzing electoral participation.  However it is not too difficult to imagine parties in the states claiming there are discrepancies which serve their opponents’ interests; absent a central list for all to see which can decisively (and transparently) resolve such questions, the voter list will almost certainly generate unfortunate disputes and cynicism about the electoral process.  Sources say the lists are in PDF, making them difficult to manipulate.  But there was an opportunity missed here to reassure the opposition.

Then on Tuesday, the political parties publicly signed a code of conduct – and the ruling PDP withheld its signature.  Coming only days after a bomb blast rocked Suleja, just over the city line from Abuja, this is a matter of great concern.  At least one SSS insider blames internal PDP rivalries for the blast though it is still under investigation.