9 March 2021
Rainforests around the world are under threat due to deforestation, forest degradation and illegal logging. But strong national laws can help, as long as laws are designed collaboratively. This is key to ensuring the health of forests and their biodiversity is better managed and conserved into the future.
Forests in the Congo form part of the Congo Basin – the second largest tropical rainforest in the world after the Amazon. Last summer, the Republic of Congo passed a new law to ensure more sustainable management of the country’s forests.
In Congo, national civil society organisations spent eight years working on the law’s reform, focusing on improving the rights of local communities and indigenous people. ClientEarth experts supported their advocacy by providing legal training and support. The adopted forest code included a number of contributions from civil society, including clauses to strengthen environmental standards and to ensure communities have a say in resource sharing.
With this accomplishment comes many lessons. Following the law’s adoption, the national NGO platform involved in the reform, Plateforme pour la Gestion Durable des Forêts (PGDF), brought members together from across the country to discuss the main successes of the legal reform process, the changes they are expecting as a result of the new code, and the challenges that remain.
Our new report lays out the key findings from these workshops – and the next steps needed to ensure the forest code lives up to its ambition.
The new code, which received presidential approval last July, is one of the key outcomes of the bilateral timber-trade agreement between the EU and Congo. This is known as a voluntary partnership agreement (VPA), and its goal is to make sure all timber exported into the EU from Congo is legal.
In addition to including a legality insurance and a traceability system to ensure legal sourcing of timber, the new law includes provisions to strengthen the rights of forest-dependent communities. These changes are important because they contribute to safeguarding forests’ biodiversity and carbon storage capacities.
The new law puts in place the concept of ‘free, prior and informed consent’ to ensure local and indigenous communities are involved in decision-making. This principle, established by international law, requires public and private bodies to receive explicit approval from communities prior to beginning any project that might affect them.
It also clarifies that benefit-sharing agreements must be negotiated between all logging companies and communities and establishes a community forestry scheme, granting formal management rights to communities.
The code also includes legal recognition of the independent monitoring of forests by civil society, which can help ensure accountability and transparency.
The improvements to local communities and indigenous peoples’ rights resulted from long-standing demands by NGOs. The legal reform process to draft the forest code actively involved civil society organisations for the first time. These reforms took place openly, and members of the public could give input.
The success of this participatory process was clearly reflected in the new law.
Today, we’ve published a comprehensive assessment of civil society organisations involvement in the reform. It finds that 65% of inputs they made were either totally or partially reflected in the adopted law, including the call for independent forest monitoring and the establishment of a community forestry regime.
This was the first time that local and indigenous communities have been given legal community forestry rights in Congo – a significant milestone.
The voluntary partnership agreement also had a positive impact on stakeholders’ participation in the reform.
ClientEarth in-country associate, Programme coordinator at Comptoir Juridique Junior and PGDF spokesperson, Inès Mvoukani said:
“Through the VPA process, we established a legal working group to build our capacity, and in turn advocate for specific provisions in the law that could help ensure improved forest governance.
“This capacity building helped to develop clear asks that the Government and other stakeholders had to take seriously.”
“The inclusion of free, prior and informed consent has also proven to be helpful. Now, communities must actively provide their consent for new agreements that affect their forest areas – without any coercion. This, coupled with our legal workshops, means that communities are less likely to be manipulated or excluded from forest governance processes.”
While the forest code has been a success, challenges remain.
Our report found that one issue with the legal reform process was that the objectives of the law reform were not clear. An impact assessment was never conducted at the beginning, so different actors involved had conflicting understandings of the context of the reforms from the outset.
For example, while civil society stakeholders were focused on provisions for free, prior and informed consent, the government was adding provisions for logging companies to give part of the timber they produce to the state, highlighting vastly divergent objectives.
When civil society organisations did provide input, often in short timeframes, they did not get feedback on which of their inputs were taken into account. While many of their asks were adopted, more open communication during consultations, and particularly feedback would be helpful to understand the Government’s priorities and make future engagement more effective.
And while local and indigenous communities were consulted at various stages during the reform, it was largely only because civil society organisations actively engaged with them.
The legal reform process has shifted the dial towards better management of Congo’s forests. But as we look ahead, it is key that the forthcoming implementing decrees reflect the improvements in the new law.
The forest code lays out the principles that will govern the new forestry processes, but the implementing decrees will contain the details that make sure the laws are operational and applicable in practice. It is important that these decrees strengthen existing provisions rather than creating loopholes.
The Government should be transparent in the development of its implementing decrees, ensuring civil society is actively engaged. Otherwise, the implementation of the code will not be strong enough.
This could undermine the ability for the law to have a meaningful impact.
Inès said: “As the Government continues to draft these implementing decrees, we strongly encourage engagement with local communities and indigenous people. This is key to making sure the laws will actually work for them.
“The forest code is already a big step towards protecting the Congolese forests, its biodiversity, and the people who depend on them. We hope the next steps will only reinforce this ambition and ensure the long-term benefits that legal reform processes can have in the forest sector.”