Between December 2006 and September 2010, Forests Monitor (FM), in collaboration with Resource Extraction Monitoring (REM), conducted an Independent Monitoring of Forest Law Enforcement and Governance (IM-FLEG) in the Republic of Congo which aimed to achieve better governance in the forestry sector and support an effective implementation of policies for sustainable forest management.
In 2010, the Republic of Congo has signed with the European Commission a FLEGT Voluntary Partnership Agreement (VPA), which aims to fight against illegal logging by allowing only legally harvested timber to enter the European market. The VPA is based on the regulatory framework as well as control and verification procedures to ensure that all timber exported from Congo to the EU have been exploited, processed, transported and exported legally. It promotes the strengthening of regulatory framework and control of producing countries, thus contributing to the sustainable management of the resource while reassuring consumers about the origin of end-products they buy.
The IM-FLEG in Congo helps to address the problems of legality of timber by compiling reliable information gathered during field investigations and from the Ministry of Sustainable Development, Forest Economy and Environment (MDDEFE) on specific issues of governance and forest crime. Over the past 4 years, our teams investigated with the responsible authorities and forest communities. The main findings of the IM-FLEG action which took place from January 2007 to July 2010 are summarized below. They highlight the challenges faced and prospects of the second phase of the project , which began in December 2010.
Strong technical capacity of senior MDDEFE executives, which are few in number
Analysis and work capacities at the central level of the Ministry are obvious, procedures and legislation, however, require being formalized, harmonized and clarified. At the departmental level, agents’ capacity needs to be improved; the human potential is a good basis if the facilities, equipment (software, technical tools) and required training are provided in the future.
Innovative dynamic and significant progress in the dialogue between the forest administration (FA) and civil society from 2007 to 2010
Pilot external monitoring field missions were also conducted by the civil society under the leadership of IM-FLEG with the full cooperation of FA, particularly at the departmental offices’ level. The current second phase of IM-FLEG project aims at maintaining the progress of these dialogues. It would be interesting to see if the process further strengthens during the actual implementation of the FLEGT VPA and is replicated in the REDD process and in other areas.High level of transparency regarding access to all forest titles and data
Access to forest titles has not been prevented by the FA, which allowed a consistent monitoring. While it is still necessary to automate and improve the centralization of information, good collaboration of the FA has facilitated the work of the IM-FLEG. Access to information on forest taxation at the Ministry of Finance has become more difficult, due to the lack of a memorandum of understanding with the IM-FLEG.Good knowledge and internal analysis of the current challenges of forest control within the FA
Similar problems to those indicated by the IM-FLEG were raised during meeting with the MDDEFE, demonstrating a good knowledge of the elements that need to be improved. The translation of the reports into actions is however not systematic and characterized by slowness and a lack of review of the systems in place.Signing of the EU-Congo FLEGT VPA
The implementation of the FLEGT-VPA will generate new challenges for forest control in the sense that beyond the punishment of forest crime, it will also require certifification of the legality of timber processing operations in order to export this timber to the European market. The implementation of the FLEGT licensing system was initially scheduled for July 2011. The challenges are numerous considering the diagnosis posed by the project on the current level of control achieved and of human and material resources allocated to forest control. The implementation of the FLEGT VPA requires more and better quality control activities.
The first phase of IM-FLEG took place in the context of the global financial crisis. According to MDDEFE, this crisis began to affect the forest sector in the Congo in June 2008 with the decrease of timber price and a 40% reduction of expected exports. To help forest companies cope with the situation, the government adopted emergency measures reducing the costs and tax obligations for forest companies.
These measures should have been subject to regulations to give them a legal character, but in July 2010, only four memos on their implementation had been released. The implementation modalities of some of these measures have not been well defined; they are subject to interpretations and implementations varied.
The implementation of so called "exceptional” measures raises the question of compliance with the expectations of international markets against the criteria of legality used in FLEGT. Even if some aspects of the legislation can be adapted in exceptional cases (financial and economic crisis for example) such flexibility should not be interpreted as means of widespread impunity. This should not affect compliance with the law and the implementation of the law in its entirety.
Forest management planning
The IM-FLEG has reported chronic delays in the process of signing memoranda of understanding (MoU) and implementation of the management plans. To be truly effective, the actions taken to push forward the process of forest management must be accompanied by rigorous control and repressive action against companies who violate the new MoUs .Overcuts and cut of unauthorized species
Most companies operating in the south are systematically exploiting either species that are not in their permit, or a number of trees much higher than allowed. These practices are indicative of failures in the management process and compliance with operational standards by the companies concerned as well as at the control level. These practices also go against the logic of sustainable management as they have a negative impact on the renewal of the resource.Low level of implementation of obligations laid out in the cahier des charges and taking insufficient account taken of the local people’s rights
The level of implementation of obligations by the companies holding concessions is generally low and unsatisfactory, especially for those linked to socio-economic development of local populations. In addition, conflicts between local people and some forest companies have been reported on several occasions. These conflicts tend to focus on the claim by some villages for benefits in exchange of access by forest companies to areas which were customarily used by the inhabitants of these villages.
The addition of further procedures for law enforcement within the Forest Code 16-2000 as foreseen by the FLEGT VPA, and active participation of civil society supported by the current phase of IM-FLEG, may significantly improve public participation in the management of forest resources.
Low amount of fines and lack of repression action to secure payment
The FA does not have a coherent system of law enforcement. Indeed, the subjective interpretation of procedures and sanctions under the Forest Code in effect seriously taints the desired effect by the legislature. The FA often considered as inappropriate recommendations of the IM-FLEG for more rigorous sanctions required, considering the economic context. However, the economic and financial situation does not justify all the shortcomings identified and similar recommendations had been made before the international crisis affecting the forestry sector in the Republic of Congo. In addition, to allow better exchange of information between different departments responsible for law enforcement, and thus improve the effectiveness of forest control, restructuring and harmonization of the presentation and content of litigation records are needed.Risk that the current “transaction” system makes illegal logging profitable
The Forest Code of the Republic of Congo insufficiently circumscribes the “transaction” procedure, which is the preferred option in the process of repression. In the absence of information on the legal procedures, those procedures may be subject to interpretation and varied applications. It is therefore necessary that the terms and conditions of “transactions” are specified.
Transactions
The recovery rate of litigation is extremely low (23% in 2009) and some transactions established more than 5 years ago still have not been recovered. Over the period 2007 - 2009, approximately 900 000 Euros have not been recovered in respect of the transactions.Felling and superficies taxes
For the years 2008 and 2009, REM has reported about 5.65 million Euros and 5,640,000 Euros, respectively, of felling and superficies taxes that have not been recovered. In addition, there is a considerable difference between the rate of recovery of the felling tax and the superficies tax: the first is two times higher than the second, while the calculation of the felling tax is more complex than the superficies tax.
Non-payment of taxes and transactions represents a loss for the state of about 6 million Euros per year, the unpaid superficies tax accounts for about 70% of this total amount.Need to centralize data for the recovery of forest revenues (taxes and fines)
The procedures for recording and transmission of data need to be improved. The lack of standardised software at the national level complicates data collection and analysis throughout the process. The estimated amounts to be collected depend on this process and it may have significant impact on revenues of FA, as well as for taxes, fines and damages.
Inadequate procedures and heterogeneous application of existing procedures in the allocation and transfer of logging permits Need to optimize the allocation of resources available to State services in charge of forest control
Control carried out by the FA staff is still below the targets set by the regulations, including an average rate of control per concession of once a year (instead of 4) in 2009 and 16% of active concessions (7 out 44) not subject to any control the same year.Strengthen the synergy between IM-FLEG and FA in the planning and execution of joint missions
A low level of transparency in planning and carrying out the tasks of control by the FA has been reported by the IM-FLEG throughout the first phase of the project. The establishment of a formal framework and joint planning of such missions during Phase II could improve the level of achievement in view of their importance for the IM-FLEG.Delays in the consideration of recommendations made by the IM-FLEG and in reading committee meetings
Taking into account the recommendations of the IM-FLEG by the FA is a crucial aspect in assessing the impact of IM-FLEG. In general, the time between the dates of submission of reports by the IM-FLEG to the reading committee and validation / publication of those reports were too long during the first phase (up to 276 days).
Some recommendations were greatly suffering from the long delays, during which they sometimes lose their relevance as they required short-term actions.
It is essential that local communities and civil society organizations are involved in the national IM-FLEG and other forms of monitoring of illegal logging, especially on the socio-economic and governance aspects. Indeed, local people are better able to define and express their needs and assert their own rights. They are also more likely to define solutions adapted to their condition. To be involved they should be aware of the issues that concern them directly and of the power of action available to them. Therefore IM-FLEG has tried to educate the Congolese public to the need to monitor compliance of resource extraction with laws relating to natural resources and the benefits of good forest governance.
However, for the demands of civil society to be credible, it is necessary to base them on facts. Indeed, it is essential to disseminate credible and constructive criticism by including recommendations for control and monitoring actors at all levels. The findings, analysis and recommendations made by CSOs should also be disseminated to multiple players. This is one of the challenges that the current phase of the project should take up.
Despite encouraging signs regarding the political and technical capabilities available within the Congoleses forest administration (FA), serious problems of governance and law enforcement persist in all areas investigated: forest control, forest revenues recovery, management planning, allocation and transfer of concessions, participation of civil society in forest management and, overall, compliance of logging activities with the legislation. In general, we can say that the forest control in place is unable to detect or prevent illegal activities due to too few controls and sanctions. In such a system, logging companies that comply with the law are disadvantaged compared to those who act illegally with impunity and by maximizing their productivity in the short-term. A firmer and more consistent approach in forest control would reduce illegal logging and allow forest companies to operate on a fairer basis.
Regarding the implementation of IM-FLEG, despite the good cooperation of the FA in terms of access to information and concessions which facilitated the achievement of independent investigations, recommendations need to be taken more into account and put into action by the FA. The absence of a formal mechanism to monitor actions taken following recommendations and poor communication about them have greatly diluted the impact of these upon the improvement of current practices. The FA is putting a lot of energy into explaining the anomalies but much less into making decisions and steps to correct them.
Significant resources need to be allocated by the FA in order to be able to issue the first FLEGT licenses in 2011-12 and demonstrate good governance within the REDD. Indeed, some implementation activities for the VPA have significant delays from the original timetable or have not even started yet.
Through the formation of a shadow team, the IM-FLEG project helped the emergence of civil society actors, competent to support and monitor government actions regarding the implementation of forest policies and Law. This training will help promote good governance through the quality and the relevance of the problems that beneficiaries may bring to the attention of the rulers. Trained shadow team members were consolidated into one legal entity called CAGDF whose creation came in response to the willingness to involve a national independent monitoring civil society organisation in the negotiation of the VPA.
In order to sustain the achievements of the IM-FLEG approach developed in the Republic of Congo over the last 4 years and the action undertaken in the context of the implementation of the FLEGT VPA, the CAGDF is the partner selected by REM and Forests Monitor for the implementation of the second phase of the project (2010-2012). The aim of this partnership is to complete the skills transfer to national experts in the field of independent monitoring.