In February 2011, the Republic of Congo became the first African country to adopt a national law for the promotion and protection of the rights of indigenous peoples (Law 05-2011). The development of this law had been ongoing since 2004. The process benefitted from the support of various UN agencies and international NGOs. Its adoption was hailed as a new era for indigenous rights in the African region. During its presentation to the UN Human Rights Council’s Universal Periodic Review (UPR), Congo indicated its intention to ratify ILO Convention No. 169 on the Rights of Indigenous and Tribal Peoples.
Since the adoption of Law 05-2011, however, few legal measures have been taken at national level to ensure that this law is implemented, or indeed to ensure that other national laws are in line with the principles of indigenous rights enshrined in Law 05-2011. At this time, the legal Decrees that are necessary to ensure the implementation of the law have not been enacted. The Republic of Congo has been at the forefront of legislating for indigenous peoples’ rights, but progress now appears to have halted in its tracks.
Aside from the lack of implementation decrees, there are some key incompatibilities between the content of Law 05-2011 and other national laws – most notably on land and resource rights and consultation. Below is a short summary of three key issues related to the implementation of indigenous peoples’ rights in Congo, from a legal and practical perspective. These issues require urgent attention if the protection of indigenous peoples’ rights is to move from legislation to impact.
- The right to consultation, and free, prior and informed consent. Article 3 of Law 05-2011 puts in place the first ever national legal framework in the African region to ensure that indigenous peoples are consulted, with the objective of achieving free, prior and informed consent, prior to the consideration, formulation or implementation of all legislative or administrative measures, or projects and programmes likely to affect them directly or indirectly. This Article has far-reaching implications, and is central to the application of the Law as a whole. However, there are two main concerns at this point concerning its implementation:
- An implementation decree, and guidance on consultation and consent is needed. Without a specific implementation decree, and specific guidelines to ensure proper consultation at all levels provided for by law, there is a risk that consultation will be ad hoc, and not implemented in accordance with the law and the overall spirit of the law. Ample evidence from the application of indigenous rights in practice, for example from the implementation of ILO Convention No 169, suggests that ad hoc consultations are not sufficient to ensure that consultation and participation-related rights are fully respected.The establishment of adequate laws and associated structures to ensure ongoing participation of indigenous peoples in decision-making will be an essential foundation for the implementation of all the provisions of Law 05-2011, and not only those on consultation, as consultation is the central tenet of the law as a whole.
- The structures or official bodies established to oversee implementation of Law 05-2011 must have adequate and meaningful indigenous participation. Congolese civil society and others have expressed concern that: the level of indigenous participation; the level of decision-making power of indigenous peoples; and the manner in which indigenous peoples are selected to participate in institutional structures intended to oversee the implementation of Law 05-2011, must all be considered in the establishment of the Inter-Ministerial Committee foreseen (Article 45 of Law 05-2011) to oversee the implementation of the Law. The establishment of any formal body must be in line with the overarching principles defined in Law 05-2011, and in line with international standards on the rights of indigenous peoples, they must have a meaningful role in decision making on the implementation of the law, and an adequate representation in this body. Further, in accordance with international standards, indigenous peoples’ own forms of representative institution, and own forms of decision-making should be respected in the process of selection of indigenous representatives for such a body.
- Consultation and consent of indigenous peoples applies to all legislative, administrative and programming matters concerning them. Article 3 of Law 05-2011 expressly states that consultation and consent apply to a very broad range of proposed and actual measures concerning them, and yet there are no specific provisions in other national laws regarding indigenous consultation. This reveals an incompatibility in legislation that needs to be addressed so that crucial decisions on land and resources, education, development, justice and other areas covered by Law 05-2011 are not taken without respecting their right to consultation. A provision on consultation in Law 05-2011 would not be sufficient to ensure this if other laws and their implementing measures do not expressly take this into account.
- Discrimination. Numerous international bodies have expressed concern at the endemic discrimination faced by indigenous peoples in Congo – in all aspects of their daily lives. Law 05-2011 clearly recognises the impact that discrimination can have on indigenous peoples’ full enjoyment of their rights, and prohibits discrimination against indigenous peoples on the grounds of their social origin and indigenous identity (Article 2). However, no further measures are foreseen to tackle discrimination against indigenous peoples. The overarching evidence from policy and practice in addressing discrimination is that a simple legal prohibition is not sufficient to combat discrimination. Legal prohibitions need to be combined with special measures and programmes of action aimed at gradually ensuring that indigenous peoples are able to enjoy their rights on an equal footing to other groups in society. There are some specific provisions on discrimination in Congolese law, such as a provision in its Constitution (Article 8), and specific provisions in other laws such as the Labour Code, on equal pay for equal work (Article 80). However, there is no overarching national policy on discrimination. Further, the lack of provision for special measures aimed at combatting discrimination may mean that legal provisions on non-discrimination remain an intent on paper, and don’t result in real change in the situation for indigenous peoples.
- Land and resource rights. No implementing Decrees have been adopted to ensure implementation of the extensive land rights provisions in Law 05-2011, which go much further in recognising indigenous peoples’ land rights than existing Congolese land legislation. These are urgently needed to prevent the ongoing dispossession of indigenous peoples from their lands. However, there is also a risk that a number of incompatibilities between the provisions of Law 05-2011 and some of the fundamental principles of Congolese land laws could serve to diminish or negate indigenous peoples’ rights to land, as well as their right to exercise their own priorities for development. These include the principle of “mise en valeur” (productive use) of land enshrined in Congolese land legislation. According to this legislation, land which is not used productively is considered as vacant land and therefore open to claims by others. Many of the legal criteria for recognising land use as “productive” are fundamentally incompatible with most indigenous peoples’ primary forms of land use, leaving their lands extremely vulnerable to being categorised as “empty”, meaning that they are not able to claim rights to it. The land rights provisions in Law 05-2011 clearly subject indigenous peoples’ land rights to the principle of “mise en valeur” as enshrined in national law (Article 36). This appears to open the possibility of rendering land rights provisions in this law unusable for the benefit of indigenous peoples. There is an urgent need to redefine the notion of “mise en valeur” enshrined in national law, which is incompatible with internationally recognised rights of indigenous peoples to use, control and develop their land according to their own priorities.
 Human Rights Council, 2013, Universal Periodic review, National Report Presented in Conformity with Paragraph 5 of the Annexe to Resolution 16/21 of the Human Rights Council: Congo, UN Doc., A/HRC/WG.6/17/COG/1, July 2013.
 See for example: Committee on the Elimination of Racial Discrimination (CERD), 2009, Final Observations, Congo, UN Doc., CERD/C/COG/CO/9, 23rd March 2009; African Commission on Human and Peoples’ Rights (ACHRPR) and International Work Group on Indigenous Affairs (IWGIA), 2011, Report of the Working Group of the African Commission on Indigenous Populations/Communities, Mission to the Republic of Congo, 15-20th March 2010; Human Rights Council, 2011, Report of the Special Rapporteur on the Rights of Indigenous Peoples, Mr. James Anaya – The Situation of Indigenous Peoples in the Republic of Congo, UN Doc., A/HRC/18/35/Add.5, July 2011; ILO, Committee of Experts on the Application of Conventions and Recommendations (CESCR), Direct Request 2012 (published 2013), Convention on discrimination (Employment and Occupation), 1958, No. 111, Congo; and Committee on Economic, Social and Cultural Rights (CECSR), 2013, Observations formulated in the Absence of an Initial Report, adopted by the Committee at its 49th Session (12-3oth November 2012), Congo, UN Doc., E/C.12/COG/CO/1, 2nd January 2013.
 Articles 4 and 17 of Law 25-2008 (Loi Portant Regime Agro-Foncier). Fur further analysis of Congo Basin Land legislation see: Thornberry, F., 2015, “Les droits fonciers des peoples autochtones dans le bassin du Congo – pour un meilleur cadre legal”. In, Bellier, I. (ed.), Terres, territoires, ressources : Politiques, pratiques et droits des peuples autochtones, SOGIP, Ecole des Hautes Etudes en Sciences Sociales, Paris, pp. 141-156.