The Democratic Republic of the Congo has achieved a high overall score in implementing the 2019 EITI Standard
Outcome of the Validation of the Democratic Republic of the Congo
EITI Articles of Association 2019-2021, Article 12.1. ix)
13 October 2022
The Democratic Republic of the Congo (DRC) has achieved a high overall score in implementing the 2019 EITI Standard (85.5 points). The overall score reflects an average of the three component scores on Stakeholder engagement, Transparency and Outcomes and impact.
The EITI Board commends the DRC for achieving a very high score on Outcomes and impact (95.5 points). This reflects the DRC’s use of its EITI implementation to generate debate and support reforms in, for example, contract disclosure, subnational payments and quasi-fiscal expenditures despite restrictions linked to the COVID-19 pandemic. The DRC EITI has followed up on recommendations with impetus from the highest levels of government, including the Presidency, which has yielded tangible reforms. The DRC EITI has regularly taken stock of the outcomes and impact of implementation and has adapted outreach activities to the impacts of the COVID-19 pandemic to further generate the use of extractive data and stimulate vibrant public debate. The Board commends all three constituencies for their efforts to improve the accessibility of data disclosed through the EITI on extractive contracts, barter agreements, license allocation and state-owned enterprise (SOE) transactions. There is also evidence of use of EITI data by researchers, and strong cooperation between government institutions such as the Ministry of Hydrocarbons and the MSG. The DRC was awarded 3.5 additional points for the effectiveness and sustainability of EITI implementation.
On Transparency, the DRC reached a moderate score (78 points). The DRC has used its EITI disclosures to make new information on licensing information, barter agreements, SOE financial relations and subnational payments available to the public. Both the mining and petroleum cadastres have been improved since the last Validation in 2019. The Board commends the DRC for the timeliness of its disclosures and for the publication of thematic reports on issues of high public interest such as SOEs, licensing, contract disclosure, beneficial ownership, subnational transfers, mining royalties and barter-type infrastructure provisions of mining agreements. However, new areas of the 2019 EITI Standard such as those related to project level reporting or beneficial ownership are yet to be fully implemented. In many areas, the DRC EITI has gone beyond the mapping of existing disclosures to conduct a diagnostic of current practices, such as disclosing the value of direct subnational payments that should have been transferred to local governments, or the review through an independent study of the infrastructure contract SICOMINES. The DRC EITI regularly meets the robust public demand for EITI data on the country’s extensive and complex mining sector. This creates opportunities for the DRC EITI to expand its coverage of areas of increasing public interest in future, such as the environmental impact of the extractive industries, artisanal mining and local content in the mining sector. The Board encourages the DRC to further expand its use of EITI disclosures to strengthen transparency in the allocation of mining rights, financial relations of SOEs, social and environmental expenditures. The DRC should pursue its efforts to improve transparency around SOEs’ quasi-fiscal expenditures, including SOEs' fiscal advances to the state. The introduction of online reporting and certification systems will help the DRC to increase the reliability of the financial data reported through the EITI and to further improve the timeliness of EITI disclosures.
The DRC achieved a moderate component score also on Stakeholder engagement (82.5 points). Despite the COVID-19 pandemic and some constraints in broader civic space identified in international NGOs’ assessments of the DRC, the three constituencies appear actively engaged in all aspects of EITI implementation, and have been renewing their representation on the MSG. The civil society constituency is very dynamic, drives strong public debate on extractives and regularly engages with stakeholders from various organisations outside of those directly participating in the EITI process. The Validation did not find evidence that broader constraints on civic space have curbed civil society’s engagement in all aspects of the EITI process.
However, the Board expresses strong concern over the impact of criminal prosecutions against whistle-blowers working on extractive issues on the environment for civil society engagement in public debate on natural resource governance. The Board welcomes the high-level commitment of the Government of the DRC to review its judicial system and to consider appropriate reforms, while preserving the independence of the judiciary. The Board further recognises the government’s plans to enact legislation for the protection of human rights defenders and whistle-blowers. The government is urged to publicly explain the circumstances around these prosecutions and ensure that due legal process is followed in such cases.There is scope for the MSG to further strengthen its mechanisms for considering gender balance in the representation of the different constituencies, for strengthening communication with stakeholders beyond the MSG, in particular from industry, and for improving transparency on per diem payment practices. The three constituencies have adapted their communication and coordination methods during the COVID-19 pandemic, allowing them to uphold a high pace and quality of EITI implementation. In the context of broad-based demand and interest for information on the extractive sector, stakeholders engaged in the EITI are considered authoritative sources of information and reliable technical partners for stakeholders including government entities, industry associations and researchers.
The Board has determined that the DRC will have until a next Validation commencing on 1 January 2025 to carry out corrective actions regarding MSG oversight (Requirement 1.4), contract and license allocation (Requirement 2.2), beneficial ownership (Requirement 2.5), state participation (Requirement 2.6), direct subnational payments (Requirement 4.6), disaggregation (Requirement 4.7), data reliability (Requirement 4.9), distribution of revenues (Requirement 5.1), social and environmental expenditures (Requirement 6.1), SOE quasi-fiscal expenditures (Requirement 6.2). Failure to demonstrate progress on Stakeholder engagement or Transparency in the next Validation may result in temporary suspension in accordance with Article 6 of the EITI Standard. In accordance with the EITI Standard, the DRC EITI MSG may request an extension of this timeframe or request that Validation commences earlier than scheduled.
Corrective actions and strategic recommendations
The EITI Board agreed the following corrective actions to be undertaken by the DRC. Progress in addressing these corrective actions will be assessed in the next Validation commencing on 1 January 2025:
In accordance with Requirement 1.4a.ii, the MSG and each constituency should ensure that the amendments proposed in the new decree reflect the requirement, in particular regarding consultation with wider constituency, codification of non-trivial deviations from current procedures and gender balance in their representation to progress towards gender parity. The enactment of the amended decree should be followed-up closely in the practice of the MSG’s oversight of the EITI process. A robust mechanism to detect, prevent and address perceived or actual conflicts of interest within the MSG and ensure adherence with the EITI Code of Conduct should help strengthen the MSG’s accountability. The practice of per diem, in addition to the rules, should be regularly disclosed.
In accordance with Requirement 2.2.a.iv, the DRC should ensure that any future assessment of significant deviations from legal procedures in the mining licensing process includes awards and transfers made by SOEs in the form of farm-outs, transfers or tenders in the period under review, as well as an explanation of the rules determining the type of procedure followed by SOEs in practice. To strengthen implementation, the DRC is encouraged to include mining licensing in its EITI work plan, in order to follow up on the recommendations from its thematic study on licensing.
In accordance with Requirement 2.5 by January 2022, the DRC should maintain a publicly available register of the beneficial owners of the corporate entities that apply for or hold a participating interest in an exploration or production oil, gas or mining license or contract, including the identities of their beneficial owners, the level of ownership and details about how ownership or control is exerted. Any significant gaps or weaknesses in reporting on beneficial ownership information must be disclosed, including naming any entities that failed to submit all or parts of the beneficial ownership information. Information publicly disclosed about the identity of the beneficial owner should include the name of the beneficial owner, the nationality, and the country of residence, as well as identifying any politically exposed persons. It is also recommended that the national identity number, date of birth, residential or service address, and means of contact are disclosed. The DRC EITI should assess any existing mechanisms for assuring the reliability of beneficial ownership information and agree an approach for extractive companies to assure the accuracy of the beneficial ownership information they provide. To achieve this target, the DRC should request all license holders to disclose beneficial ownership information and require all applicants of extractive licenses to disclose their beneficial owners. The DRC is encouraged to agree priorities for beneficial ownership disclosures and, based on these priorities, plan efforts to obtain this data. For example, the DRC may choose to prioritise disclosures by certain types of companies, companies holding a certain type of license or producing a certain commodity due to risks related to corruption, tax evasion or circumventing provisions for local participation. These priorities should guide outreach efforts to companies and provide them guidance. It is recommended that disclosures are published in open data format, comparable and easy to analyse. The DRC may also wish to expand beneficial ownership disclosures to other segments of the upstream extractive value chain, for instance through collection and disclosure of beneficial ownership information from extractive-sector service providers, to enable monitoring of adherence to local content provisions and to manage corruption and tax evasion risks.
In accordance with requirement 2.6, DRC should ensure that the details about any loans or loan guarantees to mining, oil and gas companies operating within the country are adequately disclosed, including loan tenor and terms (i.e. repayment schedule and interest rate). To strengthen implementation, the DRC is also encouraged to institutionalise and systematise its review of state participation in the extractive industries, in order to improve understanding of the contributions of SOEs to the country's economy, whether from a financial, economic or social perspective. To strengthen implementation, extractive SOEs are encouraged to regularly publish audited financial statements on their respective websites, to systematically inform the public on the practice of the financial relationship between the State and its companies.
In accordance with Requirement 6.2, the DRC is required to develop an EITI reporting process for material SOEs’ quasi-fiscal expenditures with a view to achieving a level of transparency commensurate with other payments and revenue streams and should include SOE subsidiaries and joint ventures. These disclosures should cover all material SOEs’ public social expenditures, such as loans and other advance tax payments to the state, undertaken outside of the national government budgetary process.
In accordance with Requirement 4.7, the DRC should agree a definition of project (license, contract and concession) in line with the EITI Standard and ensure that all financial data in its EITI reporting on government extractive revenues that are levied on a project level are reported at a project level. The DRC should ensure that any substantially interconnected agreements or overarching agreements are publicly identified, and that relevant data for each company is sufficiently linked to individual projects. To further improve on government systems, and their ability to monitor payments on a per-project basis, the MSG is encouraged to engage government agencies responsible for their collection. This could include exploring whether any changes are needed in laws or in statutory instruments and regulations, while ensuring such changes are cost-effective.
In accordance with Requirement 4.9, the DRC should ensure that financial data disclosed by the government agencies are subject to robust quality assurances that ensure that financial data in the DRC’s EITI Reports is sourced from sources subject to regular audit in line with international standards.
In accordance with Requirement 5.1, the DRC should ensure that the management of any extractive revenues that are not recorded in the national budget are specifically described, if possible with reference to publicly available financial reports. The DRC should ensure its EITI reporting publicly clarify the management of extractive revenues not recorded in the national budget. The DRC should ensure that both the companies and the central bank or any other entity in charge of managing extractive revenues not recorded in the national budget consistently disclose disaggregated data on the management of these funds, with reference to publicly accessible financial reports where applicable. The DRC is urged to follow up with relevant judicial authorities to investigate allegations of irregularities in the management of extractive revenues not recorded in the national budget, such as the mining royalties transferred to the Future Generation Mining Fund (FOMIN).
In accordance with Requirement 4.6, the DRC should ensure that all companies, all provincial revenue directorates, as well as decentralised government agencies (ETDs), disclose subnational extractive revenues, to levels of reliability as per Requirement 4.9. The DRC should ensure that the legal framework for different sub-national payment streams is publicly described in the context of each province to ensure comprehensiveness of disclosures, including for specific mining royalty allocation agreements between decentralised government agencies (ETDs) and provinces and between different ETDs. Reconciliation of revenues at the subnational level would only be feasible with the knowledge of the actual beneficiaries, in order to foster accountability for the management of extractive revenues by its beneficial owners. Payments should be reported by company, by actual recipient entity and by project where appropriate.
In accordance with Requirement 6.1, the DRC should ensure public disclosure of material social expenditures by companies that are mandated by law, including by the terms of a community development agreements that are required by law, or the contract with the government that governs the extractive investment. Where the beneficiary of the mandated social expenditure is a third party, i.e., not a government agency, it is required that the name and function of the beneficiary be disclosed. Where extractive companies’ payments to government are related to the environment and considered material, these should be comprehensively disclosed in accordance with Requirement 6.1.b. Where the DRC EITI agrees that discretionary social and environmental expenditures and transfers are material, it is encouraged to develop a reporting process with a view to achieving transparency commensurate with the disclosure of other payments and revenues.
The DRC is encouraged to consider the following recommendations to strengthen EITI implementation:
Outcomes and impact
To strengthen implementation, the DRC is encouraged to consider efforts to link the annual EITI work plan to a monitoring framework. The DRC EITI is encouraged to explore innovative approaches to extending EITI implementation to inform public debate about natural resource governance and encourage high standards of transparency and accountability in public life, government operations and in business.
To strengthen implementation, the DRC is encouraged to ensure that all data in its EITI reporting is systematically published in open data format. The DRC is encouraged to make systematically disclosed data machine readable and inter-operable, and to code or tag EITI disclosures and other data files so that the information can be compared with other publicly available data.
To strengthen implementation, the DRC may wish to consider ways of more regularly reporting to the public on progress in following up on recommendations from past EITI Reports and Validation, with a view to strengthening the EITI’s accountability as a mechanism to support reforms.
To strengthen implementation, the DRC is encouraged to ensure that its review of outcomes and impact of the EITI process is publicly disclosed on an annual basis. The DRC EITI is encouraged to document how it has taken gender considerations and inclusiveness into account.
To strengthen implementation, the government is encouraged to sustain its technical and financial support for EITI implementation, with a view to institutionalising EITI implementation into government systems.
To strengthen implementation, the industry constituency is encouraged to continue its technical support for all aspects of the EITI process, including in the technical aspects of EITI disclosures and in strengthening extractive companies’ systematic disclosures of data required by the EITI Standard.
To strengthen implementation, the government of the DRC is urged to explain the judicial process related to whistle-blowers sentenced in absentia for their allegations of corruption in extractive projects and ensure that due legal process is followed in future prosecutions. The DRC is encouraged to pursue the enactenaction of legislation for the protection of human rights defenders and whistle-blowers.The MSG is encouraged to regularly monitor developments regarding civil society’s ability to engage in all aspects of the EITI process and to organise awareness-raising sessions on the EITI protocol: Participation of civil society, with participation from the three constituencies. The government should ensure that there are no legal, regulatory or administrative constraints on civil society’s public expression on natural resource governance issues, including in their use of EITI disclosures to raise concerns over extractive industry governance. The government, in collaboration with the MSG, is encouraged to document the measures it undertakes to remove any obstacles to civil society participation in the EITI, should these arise in future. In accordance with the EITI protocol: Participation of civil society, civil society MSG members are encouraged to formalize a reporting mechanism for civil society members on and off the MSG to report any case of restriction that could constitute a breach of the protocol, to be then brought to the attention of the MSG. The MSG is expected to document how it addresses these concerns on a regular basis.
To strengthen implementation, the DRC is encouraged to ensure that there is systematic disclosure of significant exploration activities in the extractive sector of the country.
To strengthen implementation, the DRC may wish to ensure regular publications of estimates of informal extractive activities (including for GDP) on government portals, similarly to the production estimates published by the Ministry of Mines and Geology.
To strengthen implementation and increase public access to extractive contracts, the DRC is encouraged to establish centralised and regularly updated databases of published contracts and licences in the mining, oil and gas sectors, for example on the websites of the relevant government entities. The DRC may wish to strengthen its use of the EITI process to assess the effectiveness of the system for publishing extractive contracts and licences.
In accordance with Requirement 6.4, the DRC is encouraged to strengthen its use of EITI reporting to disclose the relevant legal provisions and administrative rules related to environmental management and monitoring of extractive projects, as well as review actual practices related to environmental management and administrative enforcement mechanisms.
To strengthen implementation, the Ministry of Hydrocarbons is encouraged to update its online register of petroleum licences, in particular any changes in the status of the licences - for example, cancellation or transfer. The Ministry of Hydrocarbons could include the geographical coordinates, dates of application and commodities covered by each mining title in the online register. To promote understanding of the information contained in the online register, the Ministry of Hydrocarbons is encouraged to include the names of petroleum licence holders and/or operators. The Ministry of Mines is encouraged to publish all mining licence data in an open format to facilitate research and analysis.
To strengthen implementation and monitoring of in-kind payments, the DRC is encouraged to develop a reporting framework to disclose future in-kind payments from all mining, oil and gas projects giving rise to in-kind revenues to the state once they enter production phase.
To strengthen implementation, the DRC is encouraged to ensure that the value of oil and gas production is systematically disclosed in a similar way to current practice in the mining sector.
To strengthen implementation, DRC is encouraged to disclose through the publications of the Ministry of Hydrocarbons export volumes and values for the oil and gas sector, in a similar fashion than the EITI disclosures on its open data portal.
To strengthen implementation, the DRC could expand its use of EITI disclosures to facilitate access to the audited financial statements of extractive companies operating in the country. The DRC is also encouraged to consider ways of building on its "flexible” EITI reporting to pilot alternative ways of ensuring comprehensive and reliable disclosures of government revenues from the extractive industries.
To strengthen implementation, the DRC could explore ways of strengthening systematic disclosures of information related to barter-type infrastructure arrangements such as the SICOMINES agreement. The DRC may wish to expand its use of EITI disclosures to improve transparency in the tax exemptions related to the SICOMINES agreement.
To strengthen implementation, the DRC is encouraged to publicly disclose timely information on expenditures funded by extractives revenues. The DRC, and in particular the Ministry of Budget, is encouraged to publicly disclose information about budget assumptions and projected production, commodity prices and revenue forecasts for the extractive industries.
To strengthen the implementation, the DRC is encouraged to develop a systematic mechanism for timely disclosure by provincial and decentralised authorities of subnational transfers of extractive revenues in accordance with Requirement 5.2. The government and development partners are encouraged to continue and strengthen support to the financial management capacities of provincial and decentralised authorities, as well as to relevant civil society and media initiatives, to promote accountability in the management of extractive revenues transferred to the provinces.
The government and the MSG are encouraged to consider these recommendations, and to document the MSG’s responses to these recommendations in the next annual review of outcomes and impact of EITI implementation.
The DRC EITI collated documentation for Validation using the Board-agreed data collection templates on Stakeholder engagement, Transparency and Outcomes and impact. The files are available on the DRC EITI website. The International Secretariat’s Validation team prepared an initial assessment following the Validation procedure and Validation Guide. In accordance with the Validation procedure, a public call for stakeholder views on EITI implementation was open from 15 November 2021 to 1 January 2022. Virtual stakeholder consultations were undertaken from 1 to 28 February 2022. The draft assessment was shared with the MSG for feedback on 22 May 2022, and MSG comments were received on 22 June 2022, after which the assessment was finalised for the Validation Committee’s review.
In accordance with Article 4.c of Section 4 of the 2019 EITI Standard, the overall assessment consists of component scores on Stakeholder engagement, Transparency and Outcomes and impact, as well as an overall numerical score. The component score represents an average of the points awarded for each applicable requirement. The points awarded on the effectiveness and sustainability indicators are added to the component score on Outcomes and impact. The overall score is the average of the three component scores.
Scorecard for Democratic Republic of the Congo: 2022
Assessment of EITI requirements
The three components of Validation each receive a score out of 100, as follows:
Outcomes and impact
Scorecard by requirement
Assessment of EITI Requirements
Validation assesses the extent to which each EITI Requirement is met, using five categories. The component score is an average of the points awarded for each requirement that falls within the component.
Outcomes and impact
Effectiveness and sustainability indicators
1.5 Work plan
Requirement: Fully met
The objective of Requirement 1.5 is to ensure that the annual planning for EITI implementation supports implementation of national priorities for the extractive industries while laying out realistic activities that are the outcome of consultations with the broader government, industry and civil society constituencies. The Secretariat’s assessment is that this objective has been fulfilled and that Requirement 1.5 is fully met. The DRC’s 2022 work plan is the latest operational update of the 2021-2023 three-year work plan. It is available on EITI DRC’s website. The general objective is “to implement the EITI in order to ensure the sustainable development of the DRC, through a responsible and transparent management of natural resources.” The three-year workplan includes a logical framework and a narrative part which explains the process how it has been adopted. Both documents have dedicated a strategic axis as well as a specific outcome to “strengthening the accountability of public institutions and extractive industries through systematic and regular disclosures of information on each link of the EITI value chain”.
Beyond the EITI specific issues, stakeholders ensured that national priorities linked to the management of natural resources are reflected in the work plans. In particular three strategic axes of the three-year plan, maintained in the 2022 work plan, align with government objectives mentioned in the National Strategic Development Plan and the Government Programme.
Stakeholders indicated that they have been widely consulted during the update process. The Technical Secretariat has prepared a draft work plan after having identified the activities which had not been implemented, which were being implemented and which had been implemented. In addition to a mailing list of more than 200 people from and beyond the MSG constituencies, the draft was submitted to stakeholders organised in geographical pools (Kinshasa, Haut Katanga, Lualaba, Sud Kivu, Ituri and Kongo Central) in order to seek views and improve the document.
The 2022 workplan contains measurable, time-bound activities which are associated with estimated costs of implementation. The timetable for work plan activities appears aligned with deadlines for EITI reporting and Validation. Reporting timelines are considered, as the preparation of the 2020 and 2021 reports are planned in 2022.The funding source, when it is already agreed, is mentioned too. The document includes activities designed to improve capacity (for supreme audit institutions for example); to strengthen systematic disclosure (like the adoption of a roadmap); to address legal and regulatory obstacles to implementation (like the adoption by the Prime Minister, of the decree on the governance of the National Committee); to reinforce contracts and beneficial ownership disclosure. It does not include activities specifically linked to revenue management and expenditure, discretionary social expenditures, and ad-hoc sub-national transfers, but stakeholders consulted considered that these issues were to be addressed within EITI Reports.
Recommendations from the previous Validation and different reports have been compiled by the Technical Secretariat and transformed into suggestions of activities within the draft work plan to be approved by the Executive Committee. However, there is no evidence that the MSG has undertaken any efforts to link the work plan to a monitoring framework.
7.1 Public debate
The objective of the requirement to enable evidence-based public debate on extractive industry governance through active communication of relevant data to key stakeholders in ways that are accessible and reflect stakeholders’ needs, has been exceeded. Several stakeholders consulted from the different constituencies considered that the objective had been fully met in the period under review. The Secretariat’s assessment is that all aspects of Requirement 7.1, including the encouraged aspects, have been addressed and that the objective of the requirement has been exceeded.
The EITI Reports are comprehensible and accessible on DRC EITI’s website. The multiple sources of data – the 2018-2020 EITI Report and the thematic reports – may confuse some readers who may need to be explained where to find which information. However, the Technical Secretariat has prepared contextualised and localized summaries, adapted to the interests of different target audiences. They have also elaborated infographics and innovated through the dissemination grids they have used to ensure common understanding of the reports. Stakeholders have indicated that French is widely understood in the different provinces, so the supporting documents are in this language, but discussions and explanations are often in local language.
In DRC, dissemination is firstly entrusted to civil society organizations, although there is documented evidence of government and company engagement in EITI outreach and dissemination efforts. Civil society have undertaken major efforts, taking actively into account the inclusion of the population through specific workshops and debates for women, female journalists, young people within citizens’ movements in different provinces. The workshops are generally well covered by the national or local press. The Publish What You Pay (PWYP) coalition in the DRC have provided specific train-the-trainer workshop sessions to Congolese NGOs so that they are able to train community radio journalists, maximizing a ripple effect of the EITI local public debate.
The data provided in the EITI Reports is also widely used by all stakeholders. For example, the IDAK-IDAKI (Sustainable Development in Katanga, Sustainable Development in Kivu) multistakeholder platforms, at the provincial level, used the EITI reports as a supporting document for their debates about the mining royalties and the Mining Fund (FOMIN) – which are considered by stakeholders as priority topics – in 2021. Companies, like the Gécamines in a 100-page reaction to NGOs and CSOs to their criticism, also regularly cite the data they have provided in the EITI Reports. In 2021, the Ministry of Mines organized a major multistakeholder national conference on the mining sector (“les états généraux du secteur minier”), during which EITI data was extensively referred to.
The EITI in DRC has undertaken active communication, outreach and dissemination efforts to enable evidence-based public debate on the extractive industry governance, in line with the objective of the requirement despite the COVID-19 pandemic, which has constituted an obstacle to more dissemination activities. However, available evidence indicates that the MSG and DRC EITI Secretariat have made proactive efforts to overcome constraints related to the pandemic and adapted the DRC EITI outreach efforts. Contact was maintained, however, through the website and through National Secretariat’s WhatsApp group named “Les Amis de l’ITIE RDC” (DRC EITI’s friends).More than 150 people are members and receive daily news from the DRC EITI, with the ability to comment, to debate or to add information of public interest regarding the extractive sector.
7.2 Data accessibility and open data
Requirement: Fully met
The objective of this requirement is to enable the broader use and analysis of information on the extractive industries, through the publication of information in open data and interoperable formats. Stakeholders consulted did not express particular views on progress towards this objective. The Secretariat’s assessment is that this objective is fulfilled given that the majority of data in the DRC’s EITI reporting is published in open format that has stimulated the broader use of this data in research, analysis and advocacy. Thus, the Secretariat’s assessment is that Requirement 7.2 is fully met, although not yet exceeded given the lack of publication of some EITI data in open format.
The DRC EITI has completed a summary data file for each year under review. The DRC EITI website provides a link to the open data policy adopted in 2017, which covers the terms of access, release and interoperability. The website also indicates that its content can be freely reused, with a recommendation to have the source mentioned.
The DRC EITI website contains data in different formats, including full open format. This is the case for the payments made by extractive companies (Requirements 4.1, 4.6) as well as some general and contextual information (Requirements 2.5, 3.2, 3.3, 6.3, 6.4). Data is updated when an EITI Report is available for most disclosures. However, some information in the DRC EITI Reports is disclosed only in PDF format to date rather than in open format on the DRC EITI website, including information in some of the tables and graphs in the latest EITI Report. In its comments on the draft assessment, civil society expresses concern about the lack of publication of some extractive sector data such as contracts and license data by the CAMI. However, the publication of systematically disclosed information in open format is only encouraged, not strictly required, by Requirement 7.2.d.
7.3 Follow up on recommendations
Requirement: Fully met
The objective of Requirement 7.3 is to ensure that the EITI implementation is a continuous learning process that contributes to policymaking, based on the MSG regularly considering findings and recommendations from the EITI process and acting on those recommendations it deems are priorities. Most stakeholders consulted from different constituencies considered that the objective had been met given the existence of a robust mechanism for follow-up on EITI recommendations that had led to tangible reforms in practice. The Secretariat’s assessment is that the broader objective of the requirement is fulfilled, and that all aspects of the requirement have been implemented as in the previous Validation.
Stakeholders consulted explained that the MSG usually reflects on recommendations from prior reports during the work planning phase, which includes an evaluation by the stakeholders of the recommendations from IA and from the Validation. Stakeholders consulted indicated that the work plan activities reflected the recommendations from previous EITI Reports, and there is documented evidence that all the recommendations have been compiled and analysed by the MSG for systematic follow-up on those recommendations that are prioritised.
7.4 Review of outcomes and impact of implementation
Requirement: Fully met
The objective of Requirement 7.4 is to ensure regular public monitoring and evaluation of implementation, including evaluation of whether the EITI is delivering on its objectives, with a view to ensuring the EITI’s own public accountability. The Secretariat’s assessment is that Requirement 7.4 is fully met given that the objective is fulfilled, and all aspects of the requirement have been addressed.
In 2021, the DRC EITI produced an annual progress report combining reflection on years 2018, 2019 and 2020. Stakeholders consulted explained that this delay was due to the impact of the COVID-19 pandemic and the MSG’s desire to strengthen its review of outcomes and impact. The activities implemented under previous years are listed, with their status. The DRC EITI has considered that the implementation of the transparency provisions in the legislation is a priority, and they have provided recommendations to ensure enforcement. Assessment of progress towards meeting the EITI requirements and addressing the corrective measures from the previous Validation was performed on a regular basis during MSG meetings, and during specific events like a dedicated workshop organised in Lubumbashi. It involved stakeholders from the three constituencies and beyond, who all have been able to provide feedback for consideration. There is clear documentation on the link between recommendations and activities set out in the workplan. The DRC EITI has clearly identified the impact of their work in the country, follows up on the MSG decisions and plan their own corrective measures to strengthen the impact of the EITI implementation.
Scorecard by requirement
Assessment of EITI Requirements
Validation assesses the extent to which each EITI Requirement is met, using five categories. The component score is an average of the points awarded for each requirement that falls within the component.
1.1 Government engagement
Requirement: Fully met
The objective of Requirement 1.1 is to ensure a full, active and effective government lead for EITI implementation, both in terms of high-level political leadership and operational engagement, as a means of facilitating all aspects of EITI implementation. The Secretariat’s assessment is that this objective is fulfilled, and that the requirement is fully met.
There is evidence of several events that Ministers have launched and attended, as well as media interviews given by senior government officials. In 2019, due to the long period of time when the government was not appointed yet, the first meeting of the year for the multistakeholder group took place in October. The dynamism of the DRC EITI, however, came back rapidly with the appointment of the government constituency members. The senior official who currently leads the implementation of the EITI in DRC is the Minister of State, Minister of Planning, Mr Christian Mwando N’Simba Kabulo. There is extensive evidence, including in MSG meeting minutes, of the former Chairs and current Chair having played a proactive role in leading EITI implementation during his tenure, in particular through actions taken to overcome barriers or challenges to EITI implementation: the finalization of the recruitment of the National Coordinator in 2020 is an example, as well as the letter sent by the Chair to the Revenues Authority to ensure timely data provision. In addition to five Ministers, government representation on the MSG includes the Office of the President, the Office of the Prime Minister and both chambers of Parliament. A review of MSG attendance lists shows that most of the senior officials attend MSG meetings regularly, while MSG meeting minutes indicate that they actively take part to discussions. Focal points in the different public entities have been appointed in order to facilitate data collection during the EITI reporting process. The government instructs the various public departments to provide the data required for the EITI process, and prepares letters signed by the Minister to companies do not comply with their disclosure requirements under EITI. The government has appointed a permanent National Coordinator for the EITI DRC during the period, after a period of turmoil, and has improved the regularity of transfers to fund operations and activities. In its comments on the draft assessment, civil society emphasised that significant pressure from donors and civil society was required to ensure the disbursement of funds allocated to the DRC EITI in 2020 given the delays in disbursements due to the change of government. In 2021, the amount transferred to the EITI DRC was 2.3 million dollars. The members of the government constituency discuss and work with their peers, particularly during meetings, and within permanent and ad hoc technical committees like the Council of Ministries, Technical Commission of the Ministry of Finance, or the Interministerial Commission for the evaluation of the Sicomines project. They also take active part in dissemination activities by ensuring effective presence to launch the activities and participate in the follow-up on EITI recommendations.
1.2 Industry engagement
Requirement: Fully met
The objective of Requirement 1.2 is to ensure that extractive companies are fully, actively and effectively engaged in the EITI, both in terms of disclosures and participation in the work of the MSG, and that the government ensures an enabling environment for this. The International Secretariat’s assessment is that the objective is fulfilled, and the requirement is fully met.
The extractive companies’ constituency is represented on the MSG by five representatives from different industries: one from SOEs, two from the Chamber of Mines, one for oil and one for forestry. Meeting records show that attendance by the extractive companies is regular and active, except for the representative of the forestry industry. They have established a communication mechanism through focal points in each extractive company, in order to ensure that the EITI reporting is done efficiently and on due time, but there is no evidence that they follow-up with non-reporting companies to ensure full industry participation in EITI reporting. During consultations, stakeholders did not highlight any restrictions to industry participation in the EITI activities. Attendance lists show that the extractive companies within and beyond the MSG have largely participated to the outreach and dissemination efforts organized by the EITI DRC and by civil society. Stakeholders highlighted the importance of such activities for extractive companies, as they give the opportunity to local communities to understand the contribution of the neighbouring mining companies.
1.3 Civil society engagement
Requirement: Fully met
The Secretariat’s assessment is that Requirement 1.3 remains fully met and that there have been no demonstrable breaches of the EITI protocol: Participation of civil society in the period under review. Stakeholders consulted, including all civil society representatives substantially engaged in the EITI process, considered that the objective of full, active and effective civil society engagement had been met and that there was an enabling environment for civil society participation. None of the stakeholders consulted considered that ad hoc restrictions on civil society created constraints on civil society’s engagement in the EITI process. As a sign of this commitment, civil society organisations involved in the EITI process organised a national workshop in June 2022 in Kinshasa to analyse the draft Validation report and formulate their comments, which are reflected in this Validation report.
Evidence and stakeholder consultations indicate that the civil society constituency is fully and effectively engaged in all aspects of the EITI process. The nominations procedure for civil society MSG members is codified and publicly available on the website of DRC EITI. The process seems to be currently followed in practice during the ongoing round of nominations in 2022. The constituency contributed to strengthening engagement, outreach, and coordination during the period under review. There is evidence of regular outreach by MSG members to the broader constituency, including regional and provincial CSOs. Civil society in its broader sense uses and disseminates EITI data in research and outreach, including at the local level and despite the Covid pandemic.
A large number of civil society organizations are actively involved in the EITI process in the DRC, including local and international NGOs. Local civil society organizations are organized in three main coalitions (PWYP, POM et Réseau ressources naturelles) networks and six platforms called “pools”, one for each of the regions of the country: Sud Kivu, Centrale, East, Kassai, Lubumbashi and Kinshasa. Evidence and stakeholder consultations suggest that civil society representatives both on and off the MSG can express themselves freely on topics covered by the EITI, which was confirmed in the MSG’s submission for Validation and consultations with civil society representatives. There were no allegations of self-censorship within or outside of the MSG on issues related to natural resource governance.
With respect to freedom of expression, several incidents related to alleged potential intimidation or retributions for critical expression on extractive industry governance were identified in the period 2018-2021, two of which involved stakeholders involved in EITI implementation. However, there is no evidence that cases of legal proceedings against specific civil society representatives in relation to their publication of specific articles on the extractive industries have inhibited civil society's ability to express its views on the EITI process, as in the period reviewed in the previous Validation, including on critical issues such as state-owned enterprises’ financial management, infrastructure deals or mining license awards. These topics have all been addressed by individual thematic reports, where civil society was able to provide inputs and on which the constituency based subsequent advocacy and campaigning. In addition, the civil society constituency has recently piloted a mechanism to ensure that allegations of constraints on civil society engagement, particularly at the subnational level, can be highlighted to civil society MSG members. There is evidence of intervention by civil society MSG members and the PWYP DRC coalition to respond to allegations of ad hoc restrictions on civil society engagement.
1.4 MSG governance
Requirement: Mostly met
The Secretariat’s assessment is that significant aspects of Requirement 1.4 have been implemented since the previous Validation, and that the broader objective of the requirement is mostly fulfilled. The objective of this requirement is to ensure that there is an independent multistakeholder group that can exercise active and meaningful oversight of all aspects of EITI implementation that balances the three main constituencies’ interests in a consensual manner. Opinions of stakeholders consulted were split on whether the objective had been fulfilled in the period under review, with some arguing that it had been achieved while others considered that it was only mostly met.
The previous Validation had highlighted several gaps regarding MSG governance. It recommended that the industry constituency agree public nominations procedures ahead of MSG member selection and that the MSG renew its membership in line with statutory procedures. In the period under review in this Validation, each of the three constituencies had their own rules regarding the nomination of MSG representatives. There is no evidence of coercion or attempts to include members that would not challenge the status quo. However, gender balance in the MSG and constituency representation to progress towards gender parity has not been subject to documented discussions. In addition, stakeholders consulted indicated that their constituency did not consider gender aspects as a focus when agreeing their MSG representation. The MSG points out in response to this comment that it is indeed concerned about gender issues. It states that women are actively involved in decision-making and are fairly represented at the level of each college. In addition, the MSG mentions that women with important responsibilities are part of the MSG and that the Code of Conduct of Civil Society and the Constitution of the DRC supports gender equity. However, there is no evidence of actual discussions on how to improve gender balance within the EITI DRC in general, and within the Extractive Industries Constituency in particular. Furthermore, there is no mechanism in place to ensure that this issue will be addressed in the future, particularly by the industry constituency. The government appoints its MSG members based on a list of public institutions included in the EITI decree. The representatives change when the government and other institutions have ceased. There is documented evidence of reports to wider constituency, especially the Council of Ministers.
The industry constituency agreed a set of nomination procedures for their MSG representatives on 13 December 2021, although no renewal of industry MSG members was actually undertaken in the period under review. The document, which is available on the EITI DRC website, indicates that the term in office of the industry representatives within the MSG is three years, renewable without limit. Three members out of five have been within the MSG for more than twelve years, whereas the two other members respectively joined in 2014 and 2015. The tenure of the current industry representatives’ membership of the MSG was not highlighted as a concern by either the broader industry constituency or other constituencies consulted. The industry stakeholders indicated that they do consider competence and a good understanding of the EITI as the most important criteria to be nominated. Diversity within the constituency has been thought in terms of sector (mining, oil, forestry) and in terms of capital structure (public/private). Communication with the wider constituency is subject to an established mechanism: each mining company has appointed a focal point who is in contact with the MSG members within the industry constituency. In addition, an EITI Commission exists within the Chamber of Mines and communicates regular updates to the assembly, as evidenced by documentation.
Civil society representation within the MSG remains governed by their 2014 Code of conduct, which was signed by 30 organizations and platforms. The document indicates that the terms in office within the EITI DRC is three years, renewable once. In order to keep the institutional memory within the constituency, the practice is to proceed to partial renewal of representatives’ mandate. No renewal took place during period under review. The last renewal took place in 2018, with three new members nominated. The other two members have respectively been in office since 2010 and 2012. No specific criteria have been established by civil society regarding diversity in terms of region, ethnicity, gender, or topics: stakeholders indicated that competence had to be the priority. No criticism about the nomination procedure and practice was expressed during consultations. An established mechanism for wider consultation is also in force within civil society: their Code of conduct mentions the obligation to circulate information and to share working documents. Non-MSG civil society stakeholders have indicated that information and consultations were effective.
The MSG continued to operate during the period under review since the last Validation, despite the difficult context of the COVID-19 pandemic and delays in the appointment of the new National Coordinator in August 2020. Stakeholders consulted within the MSG considered that they had been able to exercise active and meaningful oversight of EITI implementation, with the support of the Technical Secretariat. Stakeholders explained that MSG decisions were taken by consensus and that each constituency was considered an equal partner. There was documented evidence that different voices were listened to during MSG meetings, and that every member fully participated in decision-making. The three constituencies actively and regularly took part in outreach and dissemination efforts, as evidenced by extensive public documentation.
In 2021, the MSG prepared amendments to the 2009 Government Decree establishing the EITI in DRC, although these had yet to be enacted by the Prime Minister at the start of this Validation. The revisions to the Decree provide updates on the previous version, but do not seem to cover all provisions of Requirement 1.4b on liaison with broader constituency or adherence to the EITI’s Code of Conduct. The MSG’s current governance rules in the period under review were those adopted in 2011 and reviewed in the previous Validation. In its comments on the draft assessment, the MSG acknowledges a "relatively long wait" in the adoption of the amendments to the 2009 Decree but notes the absence of a legal vacuum with the existence of the 2009 Decree, supplemented by Executive Committee decisions, including on per diems, and constituency-specific documents, such as the civil society Code of conduct and the company reference document on the appointment and replacement of members. While these efforts should be considered, it should be noted that the update of the EITI DRC's internal governance rules was a corrective measure from the previous Validation. Communication with the wider constituency and compliance with the EITI Code of Conduct remain, pending the new decree, issues that have only been addressed by and for civil society. For the extractive industries in particular, there is no documentation to ensure that regular communication with the wider constituency is in place.
The DRC EITI’s governance current documents do not provide specifically for conflicts of interest or rules for their treatment of confidential information. In its comment on the draft assessment, the MSG refers to four documents related to the issue of conflict of interest and treatment of confidential information. These are the EITI Code of Conduct, the Technical Secretariat Procedures Manual, the Code of Conduct for Government Officials and the Internal Regulations that has yet to be developed. In addition, there is no indication by stakeholders consulted, of MSG members not abiding by the EITI Code of Conduct or being subject to a conflict of interest.
The per diem rules have been publicly made available on the DRC EITI website, as required by the Standard and a corrective action from previous Validation. Reference is made to 2014 MSG meeting minutes where the decisions to establish the amounts – USD 300 per ordinary meeting and USD 100 per extraordinary meeting – were discussed so that they would not cause perceptions of conflict of interest. Stakeholders consulted from various constituencies indicated that per diems had been paid regularly in practice. However, information regarding the practice – amounts distributed during the year – is not publicly disclosed and some stakeholders consulted expressed reluctance to disclose actual per diem payments. The MSG’s comments on the draft assessment indicate that the amounts received by each member can be calculated on the basis of the disclosed policy and the number of meetings he/she attended. Not only are there minutes of these meetings, but the amounts are also included in the financial statement, which is a working document of the MSG. In addition, the response from the MSG informs that the accounts of the DRC EITI are audited annually by an independent auditor and published on their website until 2016, and that the financial audit reports for the following years are about to be completed and published. However, despite the efforts made by the MSG on aspects of financial transparency, the publicly-accessible documents related to per diems do not sufficiently inform the public on the actual amounts received - or possibly denied - individually, and does not allow for verification of the compliant implementation of the per diem policy.
Scorecard by requirement
Assessment of EITI Requirements
Validation assesses the extent to which each EITI Requirement is met, using five categories. The component score is an average of the points awarded for each requirement that falls within the component.
Overview of the extractive industries
3.1 Exploration data
Requirement: Fully met
The Secretariat’s assessment is that Requirement 3.1 is fully met, as in the previous Validation. A comprehensive overview of the mining and hydrocarbon sectors is available in the DRC’s 2018-2020 EITI Report covering 2018-20. It covers recent developments as well as a brief history and a summary of the main ongoing exploration activities in both sectors. The 2018-2020 EITI Report notes that no oil and gas exploration projects are currently ongoing in DRC. While some of this information is systematically disclosed on government websites, public portals other than the DRC EITI do not yet provide an overview of significant exploration activities in the extractive industries.
6.3 Contribution of the extractive sector to the economy
Requirement: Fully met
The Secretariat’s assessment is that Requirement 6.3 is fully met. . DRC has fully met the objective of this requirement by publishing the extractive industries’ contribution, in absolute and relative terms, to GDP, government revenues, exports and employment, through systematic disclosures. Stakeholders consulted broadly considered that the extractive industries’ contribution to the national economy and the level of natural resource dependency in the economy were adequately reflected, but that more could be achieved to cover the contribution of the informal sector. At this effect, the MSG is preparing a thematic report in 2022 covering artisanal mining in the DRC. Contrary to Production and Export figures, the DRC has not yet included estimates of the informal sector’s contribution to the GDP for 2019. Although the annual reports of the BCC and the Employment Agency (ONEM) contain all the information listed under Requirement 6.3, the 2018-2020 EITI Report and summary data files present the economic contribution of the extractive sector in a more granular, clearer and more accessible manner, leaving room to improve the systematic disclosures on the contribution of the extractive sector to the economy.
Legal and fiscal framework
2.1 Legal framework
The Secretariat's assessment is that DRC has exceeded the objectives of Requirement 2.1, as in the previous Validation. All stakeholders consulted noted that the government faced challenges in its monitoring of tax payments in line with regulations, especially in the mining sector. Industry and civil society representatives commended the DRC EITI’s efforts to clarify the fragmented fiscal regime through a comprehensive table and considered that the objective of transparency in the legal framework and fiscal regime had been achieved, although they noted that there were some deviations from the legal framework in practice. Industry representatives noted that the fiscal regime was clear for experts, but not easy to understand for most citizens. Laws and regulations applicable to the hydrocarbons and mining sector are publicly available online, including on the DRC EITI website. In addition, the DRC’s 2018-2020 EITI Report thoroughly describes the applicable legal and fiscal regime in both sectors, including the level of fiscal devolution, information about the roles and responsibilities of the relevant government agencies, and the reforms as recently as May 2021. Through EITI reporting, the DRC has made efforts to go beyond the required aspects by describing the implementation of legal provisions in practice and deviations, as well as providing recommendations to the development of new laws and regulations. The majority of information related to the legal framework and fiscal regime for the extractive industries appears to be systematically disclosed on government websites in the DRC.
Requirement: Fully met
The Secretariat’s assessment is that DRC has fully met Requirement 2.4, including the objective of ensuring the public accessibility of all licenses and contracts underpinning extractive activities (at least from 2021 onwards) as a basis for the public’s understanding of the contractual rights and obligations of companies operating in the country’s extractive industries. Most stakeholders consulted considered that the objective of Requirement 2.4 had been fulfilled given the publication of extractive contracts, although some stakeholders highlighted that all extractive licenses had not yet been published.
The government has had a clear policy in favour of disclosure of extractive contracts and licenses since 2011, reinforced by the 2015 Hydrocarbons Code and the 2018 Mining Code. There appear to have been no oil and gas license or contract awards since 1 January 2021. The list of all oil contracts on the EITI website seems updated and all contracts with riders, signed before 1 January 2021, are published on it or on the contract registry of the Ministry of Hydrocarbons under construction. For mining contracts signed after 1st January 2021, stakeholders consulted explained that they were all published. However, a review of the registry of active mining licenses in 1st semester of 2021 reveals that the contracts associated with eight exploitation licenses could not be found on the Resource contract website, or the EITI website. In its comments on the draft assessment, the MSG explained that these licences corresponded to transformations of research permits into exploitation permits, renewals or transfers of licences between private companies, three cases that were not subject to the requirement for contract disclosure. The study commissioned by the DRC EITI and a study by NRGI do not assess whether all documents related to each extractive contract (e.g., annexes, amendments and riders, where applicable) are published. A technical working group of the MSG manages a list of mining contract documents to assess the missing documents for contracts signed before 1 January 2021, updated in December 2021. In its comments on the draft assessment, the MSG published a list of licences granted since the start of 2021 and a link to the Ministerial Orders awarding each license published on its website. The list of oil and gas contracts on the EITI website is updated given the lack of recent awards and amendments in the petroleum sector according to the stakeholders consulted. The MSG has not formally documented the reasons for the delays in publication of licenses and contracts awarded since 1 January 2021, although stakeholders consulted explained that it was due to the impact of the pandemic. In its comments on the draft assessment, civil society cited the contract signed in February 2022 between the Congolese government and businessman Dan Gertler's company Ventora, which had not yet been published in June 2022. The comments called for a downgrade in the assessment of Requirement 2.4. However, the Secretariat considers that all extractive contracts and licences granted and amended between 1 January 2021 and the start of this Validation (1 January 2022) have been published. There is extensive evidence of efforts by the Ministry of Mines and the DRC EITI Secretariat to implement provisions of this requirement, in a very complex environment in which SOEs manage a large part of the Congolese state’s mining assets. Given the concerns of civil society representatives regarding the effectiveness of the system of publication of new extractive contracts and licences and the non-publication to date of the new mining contract signed in February 2022, as well as the lack of systematic disclosure of some mining contracts involving state-owned enterprises, the Secretariat's assessment is that Requirement 2.4 is not yet exceeded.
6.4 Environmental impact
The objective of this requirement is to provide a basis for stakeholders to assess the adequacy of the regulatory framework and monitoring efforts to manage the environmental impact of extractive industries, and to assess extractive companies’ adherence to environmental obligations. The Secretariat’s assessment is that the DRC has addressed some encouraged aspects related to the environmental impact of the extractive industries, but that Requirement 6.4 should remain ‘not assessed’ given that the objective of the requirement is not yet fulfilled
The DRC’s 2018-20 EITI Report provides an overview of relevant legal provisions and administrative rules related to environmental management and monitoring of extractive projects. Covered topics include the environmental impact assessment process in the mining and the oil sectors, a description of the roles and responsibilities of relevant government agencies in implementing the rules and regulations. However, actual practice, including ongoing environmental impact assessments, is not described.
2.2 Contract and license allocations
Requirement: Mostly met with improvements
The Secretariat’s assessment is that the DRC has mostly met the objective of Requirement 2.2 to provide a public overview of awards and transfers of oil, gas and mining licenses. Most stakeholders consulted from all constituencies considered that there had been considerable progress in clarifying the practices of contract and license awards and transfers. According to the Secretariat, the objective of the requirement is mostly met, given the exclusion of transfers and other transfers of mining rights from the analysis of deviations from statutory rules in practice.
For mining licenses, the EITI Report describes the administrative procedures for license awards and transfers, but does not appear to describe the statutory procedures for certain types of transfers (i.e., “transmissions” and “transfers by option”). For transfers, the EITI Report does not indicate the technical and financial criteria (including for “transmission” and “transfert par option”), nor the beneficiaries of these transfers. In addition, the EITI Report does not indicate whether SOEs have granted farm-out agreements (“amodiation”) or transferred mining licenses, over the period. However, in its comments on the draft assessment, the MSG referenced documentation published on the DRC EITI website of such transfers and farm-outs by SOEs of their mining rights to private companies. However, there is no publicly available evidence that describes the MSG’s assessment of any deviation in practice in the transfer of a mining discharge licence by Gécamines to Interactive Energy Russia SA in 2019.
The EITI Report presents a review of a sample of licences that were granted or transferred during the period (excluding transfers by SOEs) which highlighted a number of non-trivial deviations (missing documents, unreliable data, etc.) and the existence of exceptionally long delays, casting doubt on the efficiency and transparency of some procedures. With regard to oil and gas licences, the DRC's EITI disclosures confirm that none were granted or transferred during the period under review. The legal framework does not provide for any technical or financial criteria for the granting or transfer of exploration and production licences in the oil and gas sector. It is the commission chaired by the Minister of Hydrocarbons that decides on the financial and technical criteria for grants. The EITI Report does not contain a review of significant deviations from legal procedures, as no oil and gas rights were granted or transferred during this period.
2.3 Register of licenses
Requirement: Fully met
The Secretariat’s assessment is that DRC has fully met the objective of the requirement to ensure the public accessibility of comprehensive information on property rights related to extractive deposits and projects, with considerable improvements since the previous Validation. Many stakeholders from all constituencies highlighted the launch of the mining cadastre as a significant improvement in transparency in mining rights.
The CAMI has launched its online cadastre (Landfolio) which contains all data required by EITI Requirement 2.3.b for all active mining licenses. The cadastre provides coordinates for all active mining licenses. However, the information in the mining cadastre does not appear to reflect the transfer of mining rights, through farm-out agreements, by SOEs like Gécamines to private companies and appears to list all such licenses as held by the SOEs themselves. In its comments to the draft assessment, the MSG considered that farm-outs did not strictly speaking represent a change in ownership, and that such titles are still listed as belonging to individual SOEs. Nevertheless, the Secretariat considers that farm-outs of mineral rights involve a transfer of rights to exploit extractive resources and are therefore covered by the definition of mineral rights as defined in Requirement 2.4.d-e. However, the MSG has produced a list of SOE farm-outs in the mining sector, thus complementing the CAMI register and providing the missing information. Various stakeholders consulted confirmed the cadastre appears as comprehensive and that the public part of the software is updated at the end of every month. The mining cadastre data is not available in open format, nor is the list of active mining licenses.
The oil and gas license register is under construction by the Ministry of Hydrocarbons, although an early version on the Ministry’s website provides most information per Requirement 2.3.b including from commodity, date of application, type of licenses, and geographical coordinates. The register on the EITI website is missing the dates of application and of expiry, although the latter are available in the Ministry of Hydrocarbons register. Neither the Ministry of Hydrocarbons register nor the EITI website register appears to be up to date. In its comments on the draft assessment, however, the MSG clarified that in the absence of licensing in the oil sector since 2015, the EITI and Ministry of Hydrocarbons registers could be considered comprehensive.
2.5 Beneficial ownership
Requirement: Partly met
The Secretariat’s assessment is that the DRC has partly met the requirement’s objective of enabling the public to know who ultimately owns and controls the companies operating in the country’s extractive industries and to help deter improper practices in the management of extractive resources. In the context of allegations of shell companies used by the Israeli businessman Dan Gertler to avoid US sanctions, stakeholders consulted considered the progress on beneficial ownership disclosures as critical . Several aspects of the full set of criteria for Validation of Requirement 2.5 have not yet been addressed in DRC, including finalizing the legal framework and operationalizing reporting practices for beneficial ownership disclosures. A draft law on beneficial ownership has been prepared in 2021 but remains under discussion pending enactment. The project includes the definition of beneficial ownership and identifies the CTCPM as the national agency responsible for setting up the register. In the absence of an established legal framework or reporting requirements enshrined in law, the EITI has attempted to collect beneficial ownership information from material companies as part of data collection for the 2018-2020 EITI Report. Given the high number of small companies with revenues below the materiality threshold, the MSG’s comments on the draft assessment note that the MSG limited itself in the year under review to sending reporting templates to companies within the scope of the EITI Report. It is anticipated that the 2020-2021 EITI Report will extend reporting to all companies that hold or apply for extractive licenses, as well as links to stock exchange filings of wholly owned subsidiaries of listed companies. Based on the beneficial ownership section in the 2018-2020 EITI Report, of the 77 extractive licensees with significant revenues, only 21 submitted information on their beneficial ownership. Section 2.5.3 of the 2018-20 EITI Report provides an assessment of the completeness and reliability of beneficial ownership disclosures, although it remains limited to the material companies’ submission rather than beneficial ownership data collection from all companies holding and applying for extractive licenses. Information on legal owners is published on the company register website,
Following additional data collection in October 2021 after the publication of the 2018-20 EITI Report, the DRC EITI has published a list of beneficial owners in open format on the national EITI website, with 56 companies having disclosed their beneficial owners. Regarding Requirement 2.5.f.iii, subsidiaries of publicly listed material companies have been identified in the summary data and the transparency template, but links to the stock exchange filings of the extractive companies in the DRC that are wholly owned subsidiaries of publicly listed companies have not been disclosed through the 2019 summary data file or on the national EITI website (only general links to the company websites).
2.6 State participation
Requirement: Mostly met with improvements
Most of the information required by Requirement 2.6 is available in the 2018-2020 EITI Report and in the 'State-owned enterprises' section of the open data portal on the DRC EITI website. Many stakeholders from different constituencies highlighted the significant work undertaken on disclosures related to extractive SOEs and considered that the objective of transparency in the financial relations between SOEs and the state were in the process of being fulfilled. Regarding the statutory rules on the financial relations of SOEs, including the clarification of the rules on retained earnings, in accordance with Requirement 2.6.a.i, the publication of the SOEs financial statements for the years 2017-2018 provide satisfactory answers. As for the rights of SOEs to raise funds from third parties and their entitlement to sovereign guarantees, this point has been clarified through the publication of a thematic report by KPMG reviewing the audited financial statements of all nine SOEs, as well as during consultations with stakeholders (Ministry of Mines and Hydrocarbons, Gécamines, MIBA, SAKIMA). SOEs' loans and loan guarantees to companies in the extractive sector are detailed in the Summary of the report . Regarding loans granted to extractive companies, only one loan from Gécamines to MIBA dating from 2018 was reported. For this transaction, the initial amount of the loan is specified, as well as the terms of the loan (but not the balance in 2019) in a document produced by Gécamines in June 2022. In its comments on the draft assessment, civil society argues for an assessment of Requirement 2.6 as "partially met" given the lack of information on loans granted by SOEs to extractive companies. The Secretariat's assessment is that these loans have not yet been clarified for 2019 or 2020 due to the lack of institutionalisation of the review of SOE financial statements beyond 2017-2018. Regarding the guarantees provided by SOEs in exchange for loans from extractive companies, the interest rates and the balance for 2019 are missing from the description but are not strictly required for this type of third-party financing by Requirement 2.6. In addition, a description of any guarantees covering the eight different loans granted by SOEs to extractive companies does not appear publicly available.
Regarding the financial relations between the SOEs and the state in practice, Gécamines seems to be the only SOE to have pursued the publication of its audited financial statements after the thematic report. Both 2019 and 2020 audited financial statements of Gécamines are available on the company’s website, although the audited 2019 financial statements of the other eight extractive SOEs had not yet been published at the start of Validation. However, these were published in July 2022 at the request of the MSG. The DRC has made some efforts to disclose information on statutory rules related to SOEs’ procurement, contracting and corporate governance, although it has yet to expand this to a diagnostic of practices in these areas. The review of state participation through the thematic report produced by KPMG for the period 2017-18 has not yet been extended for 2019-20, implying that the review of state participation has not yet been institutionalised. In its comments on the draft assessment, the MSG considers that the objective of Requirement 2.6 has been fully met. Nevertheless, the lack of information on the financial relationship between state-owned companies and the state for 2019 compared to the EITI DRC's 2017 and 2018 disclosures supports the Secretariat's assessment that the DRC has mostly met the objective of the Requirement 2.6, with considerable improvements since the previous Validation.
4.2 In-kind revenues
There is no evidence of back-sliding since the previous Validation, in which Requirement 4.2 was assessed as “Not applicable”. There is no PSC currently giving rise to in-kind revenues to the state in the oil and gas sector. In the mining sector, two production sharing contracts have been concluded. In the first one, the SOE Gécamines, HONG KONG EXCELLENT MINING INVESTMENT CO. LTD (HKEMI) and KINGA KILA MINING SASU (KIK MINING) signed a “partnership Agreement” in December 2018 to share production from the joint commercial exploitation of the "Kingamyambo" and "Kilamusemb" copper and cobalt deposits. For the second, contract, and agreement has been signed in February 2019 between SOKIMO and the mining company KORKHA SARL for the semi-industrial exploitation of two licenses . This contract is for three years renewable and includes a net production sharing clause (gross production minus recoverable costs) of 30% for SOKIMO and 70% for KORKHA. Since these two projects have not yet entered production phase, Requirement 4.2 is considered not applicable in DRC in the period under review.
4.5 SOE transactions
Requirement: Fully met
The Secretariat's assessment is that the DRC has fully met the objective of Requirement 4.5 in ensuring the traceability of payments and transfers involving SOEs and strengthening public understanding of whether revenues accruable to the state are effectively transferred to the state and of the level of state financial support for SOEs. This view that the objective was fully met was broadly reflected in stakeholder consultations.
The revenue streams collected by the SOEs are correctly described and disaggregated in the 2018-2020 EITI Report, amounting to USD 205,7m in 2019. While all SOEs collect revenues (with the exception of SACIM and SCMK-Mn without a joint venture in production), Gécamines alone accounts for more than 95% of the revenues destined to SOEs.
With respect to transfers between the state and material SOEs, payments (excluding regular taxes) made to the state by SOEs are correctly detailed and disaggregated in the 2018-2020 EITI Report. The state does not appear to have granted operating subsidies to any SOE, and the review of the financial statements and the responses of the SOEs to the EITI Technical Secretariat's requests for information did not identify any transfers or subsidies from the central or provincial government to any of them for 2019. As part of the 2018-2020 EITI Report, the MSG provided a specific template on loans or subsidies received from the state to each of the nine SOEs, all of which indicated that they had not received any such transfers. As for the comprehensiveness and reliability of the data, since the data was not reconciled as part of the flexible reporting, it is subject to the same limitations as the rest of the financial data (see 4.9).
6.2 SOE quasi-fiscal expenditures
Requirement: Mostly met
The International Secretariat's assessment is that Requirement 6.2 is mostly met in the period under review. Several stakeholders from different constituencies highlighted the public interest in SOEs expenditures, particularly Gécamines. The 2018-2020 report presents the definition of quasi-fiscal expenditures agreed in 2019 and explains that no SOEs have reported such expenses, nor have any ministries. There is evidence of the DRC EITI taking steps to improve its reporting of quasi-fiscal expenditures, including the design of a specific reporting template and its presentation and dissemination to the SOEs of the extractive sector. The thematic report on the review of SOEs’ financial statements published in 2021 did not highlight any such expenditures for the year 2017 and 2018. The last Open Budget Survey and IMF article IV review do not mention any examples of quasi-fiscal expenditures. In addition, the 2018-2020 EITI Report covers three cases that could potentially be classified as quasi-fiscal expenditures, including the supply of electricity to the city of Kindu by SAKIMA, the rehabilitation of Kamanyola Avenue by GÉCAMINES and the USD 50 million in ‘tax advances’ granted by GÉCAMINES to the Treasury. The MSG has analysed each of these transactions and concluded that none of them should be classified as quasi-fiscal, and all the transactions identified occurred before the fiscal year under review (2019). The Secretariat’s view is that Gécamines' tax advances to the Treasury could, however, be considered quasi-fiscal expenditures, given that they appear to consist of SOE loans to the government that are not recorded in the government’s financial operations report (TOFE) nor the national budget, and appear to be on concessional terms compared to market rates (i.e., extended at a de facto interest rate of zero). These constitute direct transfers from the SOE to the Ministry of Finance and are intended to finance the budget. These “advance” payments to the MoF have been the focus of recent news in the national and international press and are documented in both the 2018-2020 EITI Report and the SOEs’ available 2021 financial statements. However, stakeholders consulted did not consider these "tax advances" as quasi-fiscal, but rather as advances on taxes owed by Gécamines to the state. Nevertheless, the Secretariat notes the existence of several national and international media articles (such as from Radio France International) on the management of Gécamines’ ‘tax advances’, which appear to have been transferred to other parties in practice and have not been offset by subsequent tax payments from the SOE to the state. These media articles, supported by a recently published IGF report, indicate that Gécamines’ ‘tax advances’ to the Treasury are not conducted within the conventional budget process in the DRC. Therefore, the Secretariat considers that Gécamines’ loans to the state are likely to represent quasi-fiscal expenditures. In its comments on the draft assessment, the MSG argued that these quasi-fiscal expenditures are contained in the Cash Flow Plan used to prepare the government’s financial report (TOFE). They noted that these transfers are not included in the TOFE or the National Budget as they are paid as an aggregate amount, and it is therefore impossible to link them to a specific revenue stream or financial authority. However, the management authority and the flow to be covered are determined following reconciliation sessions held regularly since 2021 between Gécamines and the relevant government authorities. The financial statements of Gécamines clearly show the tax advances as attached to a particular fiscal year, and are entered in the "State debtor" account as a receivable from Gécamines to the State. The MSG obtained from Gécamines and published in June 2022 a summary document of the status of recording (‘titrisation’), compensation and reconciliation of tax advances. While the IGF audit report on from Gécamines published in May 2022 notes different amounts, both documents agree that part of the tax advances remain to be identified and cleared. The Secretariat considers that the EITI disclosures therefore highlight quasi-fiscal expenditures by from Gécamines even if they are not categorised as such. These can be considered as a form of interest-free loan from from Gécamines to the state until their formal recording (‘titrisation’). Moreover, while a similar level of transparency to that which exists for other payments and revenue streams is achieved for a part of these tax advances (notably the breakdown by revenue stream), it remains incomplete for the part not yet recorded (‘titrisé’). In its comments on the draft assessment, civil society refers to the lack of transparency on expenditures of state-owned enterprises such as GCM and SAKIMA, which include other similar tax advances, and which it considers to represent quasi-fiscal expenditures.
The MSG’s comments on the draft assessment consider that the objective of Requirement 6.2 has been fully met. Nevertheless, the Secretariat's assessment is that the lack of recording (‘titrisation’) of a part of Gécamines' tax advances to the state, and their lack of transparency, means that the objective of Requirement 6.2 is still mostly met.
Production and exports
3.2 Production data
Requirement: Fully met
The Secretariat’s assessment is that the DRC has fully met the objective of Requirement 3.2. Details of mining production are routinely disclosed in the mining production and export statistics published on the Ministry of Mines website and regularly updated by the CTCPM. The year 2019, however, appears to be incomplete in terms of production volumes and values, although the 2020 production data appears comprehensive for 2020. These disclosures, in pdf format, distinguish between industrial, semi-industrial and artisanal sectors, and include in-depth figures on the artisanal sector for each of the raw materials extracted. The publications also contain analyses of the production of the different products, their evolution over time and the respective weight of the different producers for the year in question. The production data are disaggregated by region, company and raw material, although this information is not yet systematically disclosed in a comprehensive manner on government websites.
Oil and gas production volumes and values is provided in the 2018-2020 EITI Report, broken down by company and de facto by project. However, the value of oil production is not provided either in DRC EITI reporting or on government websites. Stakeholders from government departments highlighted that the Ministry of Hydrocarbons was currently working on disclosing the value of the production of oil and gas. Stakeholders consulted noted that the DRC EITI website also contained a database that was supposed to contain production data from each reporting extractive company, disaggregated by commodity and company, although this did not appear publicly accessible during this Validation.
3.3 Export data
Requirement: Fully met
The Secretariat's assessment is that the DRC has fully met Requirement 3.3. Most stakeholders consulted did not express views on whether the objective of transparency in the country’s formal exports had been achieved, although some highlighted that EITI data did not cover the country’s extensive informal exports. The Secretariat’s view is that the objective of transparency in the government’s extractive data has been achieved.
Mining export volumes and values are systematically disclosed through the Ministry of Mines website and also summarized through EITI reporting. In mining, export volumes and values are disclosed by region of origin as well as country of destination. Both volumes and values can be disaggregated by commodity and are broken down by region and company, (but not by project) in oil and gas and mining sectors on the open data portal of the national website of DRC-EITI (such disclosures are encouraged, not required, in the EITI Standard). While Requirement 3.3 appears to be exceeded for the mining sector, given the extent of systematic disclosures of the required data on government portals, production data disclosures for the oil and gas sector remain limited to disclosures in the DRC’s EITI Reports.
Requirement: Fully met
The Secretariat’s assessment is that the DRC has fully met the overall objective of the requirement. Most stakeholders consulted considered that the objective of comprehensive transparency in government extractive revenues had been fulfilled. A total of 77 companies (including 3 SOEs) were selected based on a materiality threshold of USD 500 000, plus the remaining six SOEs, for a total of 83 entities. On the revenue side of the disclosures, 26 government agencies were included in the exercise. The MSG's decisions on materiality thresholds are published on the DRC EITI website, and no revenue streams appear to have been excluded. Material companies, revenue streams, and government agencies are clearly identified in the 2018-2020 EITI report as well as in the scoping report. Following the Executive Committee's decision of 7/30/2020 to produce a "flexible" report, payments and revenues are reported unilaterally by the parties and therefore are not reconciled. However, additional explanations have been requested from reporting parties for any reporting discrepancies greater than or equal to USD 500,000. In parallel, the data available on the EITI DRC website includes adjustments made after the production of the relaxed report.
Material companies that failed to submit their reporting template are clearly identified, representing 3% of total revenues. Only one provincial agency failed to report revenue for 2019, representing less than 0.1% of total revenue. Total extractive sector revenues, including non-significant revenues, is also clearly disclosed by agencies and disaggregated by revenue stream and company. The coverage for the reporting year is 96%. Audited financial statements for material companies are available for 47 of the 83 companies, as confirmed in a review of extractive companies’ auditing practices by the DRC EITI.
4.3 Infrastructure provisions and barter arrangements
Requirement: Fully met
The Secretariat's assessment is that the DRC has fully met Requirement 4.3. Most stakeholders consulted did not express particular views on progress towards the objective, although some argued that public understanding of infrastructure provisions and barter-type arrangements had been achieved through the DRC EITI’s pioneering disclosures on the SICOMINES agreement. The DRC EITI has disclosed the terms of agreements involving the provision of loans and infrastructures in exchange for exploration or mining production concessions, through the 2018-2020 EITI Report and through its thematic report on SICOMINES, published at the end of 2021. It constitutes a set of agreements involving the provision of a package of loans for infrastructure works in exchange for mining licenses in the Lualaba province. The agreement is categorised as a government-to-government agreement. The MSG and the consultant who wrote the report have acquired a comprehensive understanding of the terms of the contracts and agreements concerned, the identity of the parties involved, the resources that have been promised by the state, the value of the consideration in terms of financial and economic flows (e.g. infrastructure works) and the level of materiality of these agreements in relation to conventional contracts, as well as the changes of these terms across the years. The contracts governing the agreement, as well as all four amendments have been published. These disclosures have been unanimously welcomed by stakeholders and have helped promote discussion around a major agreement. Following the publication of the thematic report on SICOMINES, a commission has been created to re-examine the terms of the contract. The DRC's EITI disclosures cover these agreements and provide a level of detail and transparency commensurate with the disclosure and reconciliation of other payments and revenue flows. There does not appear to be any other barter-type agreement in the DRC’s extractive industries in the period under review.
4.4 Transportation revenues
Requirement: Fully met
The Secretariat’s assessment is that Requirement 4.4 continues to be fully met in DRC, as in the previous Validation. The DRC has continued to use its EITI disclosures to cover material transport revenues in the oil and gas sector, linked to the oil pipeline from Angola, and to describe the terms of the convention determining transport fees.
4.7 Level of disaggregation
Requirement: Mostly met
The secretariat's assessment is that the DRC has mostly met the objective of Requirement 4.7. Some stakeholders conceded that the objective of project-level reporting for government revenues levied by project, rather than by company, had not yet been entirely fulfilled. The MSG’s comments on the draft assessment consider that the objective of Requirement 4.7 is fully met. Nevertheless, the Secretariat's assessment is that the objective is still largely met given the lack of information on the list of projects on which the EITI reporting by project has been based and which describe precisely the licences covered by each project supposedly covering several closely related licences. In addition, the MSG comments and the EITI Report do not provide disclosure of financial EITI data by project for all projects within the scope of the EITI Report, including projects involving state-owned enterprises.
The reconciled financial data in the DRC’s EITI Reports is disaggregated by government entity, revenue stream, and company. The definition adopted for the term project is documented in previous DRC EITI Reports and relates to individual companies and extractive projects. However, the MSG’s comments on the draft assessment provide a different definition of project than that in the EITI Report, citing only extractive contracts as the basis for projects. In its response to the draft assessment, the MSG has published a table summarising the status of reporting by project. While some revenue streams are identified as being received on a project basis, they are not consistently disaggregated by project (particularly those from SOEs operating several contracts). However, for companies holding a single permit or licence, the EITI report has effectively been disaggregated by project. In cases where the MSG lists several licences as forming a single project, no list of closely interconnected licences or permits forming a coherent project is available.
4.8 Data timeliness
The secretariat's assessment is that the DRC has exceeded the objective of Requirement 4.8. Several stakeholders consulted highlighted the timeliness of the DRC’s most recent EITI reporting as an improvement in its relevance for policy making and public debate. The DRC EITI data has been published in a sufficiently timely manner, with financial data published within less than one year of the fiscal period covered. Stakeholders from government highlighted that despite the context of the COVID-19 pandemic. The EITI Report covering 2018, 2019 and the first semester of 2020 was published in early March 2021. This supports the Secretariat’s assessment that DRC has exceeded the requirement’s objective of ensuring that public disclosures of company payments and government extractive revenues are sufficiently timely to be relevant to inform public debate and policy making.
4.9 Data quality and assurance
Requirement: Mostly met
The Secretariat’s assessment is that the DRC has mostly met the overall objective of the Requirement 4.9. While some stakeholders consulted considered that the objective of data reliability had been achieved in the DRC’s EITI reporting, others highlighted concerns over the reliability of government revenue collection systems. Steps have been taken under the flexible approach to EITI reporting to ensure the reliability of disclosures of company payments and government revenues from oil, gas, and mining. On the disclosures of company payments to government, the scoping study for the 2018-2020 EITI Report presents the audit procedures currently enforced in the DRC and the quality assurances for EITI reporting agreed by the MSG for the years under review. At the level of government agencies, the General Inspectorate of Finance (IGF) audit reports covering government revenues were made available to the IA and MSG for the period under review (2019). The 2018-2020 EITI Report contains the MSG's assessment of the comprehensiveness and the reliability of financial data disclosed unilaterally by companies and collecting agencies. For government agencies, the report explains that reporting from only the three national agencies (DGI, DGRAD, and DGDA) was certified by the IGF, while reporting by other material national government entities, SOEs and subnational tax offices was not accompanied by quality assurances agreed by the MSG for EITI reporting. The EITI Report states that the IGF was able to provide certification of the reporting by DGRAD, but not from DGI or DGDA. Several stakeholders emphasized the difficulty of the work carried out by the IGF, particularly because of the impact of the COVID-19 pandemic, and noted that efforts were still ongoing to improve the reliability of the figures disclosed for the years covered by the 2018-2020 EITI Report, including by following up with government entities for whose EITI reporting the agreed quality assurances were not provided. As of the commencement of Validation, only the revenues collected by DGRAD, or 14% of total revenues, were covered by quality assurances agreed in accordance with Requirement 4.9, which appeared to hinder progress towards the broader objective of reliable disclosure of taxes and revenues in the view of several stakeholders consulted. The 2018-2020 EITI Report lists the names of reporting companies and government entities that did not adhere to the agreed upon quality assurances, and it is possible to assess the materiality of their payments in 2019 based on the financial data disclosed in the report. The IGF recommended the implementation of the ISYS-REGIES software for the automation of the revenue collection procedure, as well as its dematerialization in order to solve the obstacles to the reliability of financial data.
5.1 Distribution of revenues
Requirement: Mostly met
The Secretariat’s assessment is that the DRC has mostly met the objective of Requirement 5.1, considering that the objective of this requirement is to ensure the traceability of extractive revenues to the national budget and ensure the same level of transparency and accountability for extractive revenues that are not recorded in the national budget. Several stakeholders from different constituencies considered that the objective was mostly fulfilled through the DRC EITI’s extensive work on the management of mining royalties, including allocations to special accounts.
With regard to extractive revenues collected by SOEs, the 2018-2020 EITI Report explains in detail the rules and practices regarding the revenues that the nine SOEs collected and the extractive revenues that were transferred to the Treasury in the 2018 and 2019 fiscal years. It is also possible to determine the share of each revenue stream collected and retained by SOEs and other revenue-collecting government entities, such as the CAMI and provincial governments, relative to total revenues. Gécamines' audited financial statements were available for the period under review, but not for the other eight SOEs (see Requirement 2.6). In its response to the draft assessment, the MSG obtained the publication of these financial statements.
The 2018 Mining Code created a fund for future generations, meant to be funded by allocations of a 10% share of mining royalty revenues. During the period under review, which were the first years of implementation of the revised Mining Code, the modalities related to the FOMIN’s management and revenues had not yet been codified, meaning that revenues earmarked for the FOMIN were transferred to an escrow account. These transfers were not recorded in the government’s budget or financial statements (TOFE). The revenues accruing to the escrow account in 2019 were not disclosed to the same level of transparency as other extractive revenues in the scope of EITI reporting. The management of funds accruing to the escrow account maintained on behalf of the FOMIN is not described in the DRC’s EITI reporting or publicly accessible financial reports. There are indications in public sources such as news articles that USD 25 million out of the USD 29 million disbursed from the escrow account were allocated to finance the national budget deficit in 2020, although stakeholders consulted could not confirm this. The issue of the FOMIN’s management has led to polemics, with one CSO the target of a law suit by the former Prime Minister in relation to his comments on the possible misuse of FOMIN funds (see Requirement 1.3).
In its comments on the draft assessment, the MSG relies on a document issued by the Ministry of Finance indicating that the amount of USD 25 million is included in the Public Sector Cash Flow Plan (PTR 2020) under "Other Income and Grants". As it was included in the budgetary resources, this amount, in accordance with the budgetary principle of universality of public accounts, was indeed used to cover government expenditure. Given the high level of public interest generated around the issue of sub-national payments, and the lack of information on the management of other extractive revenues transferred to the FOMIN escrow account in the period under review beyond the USD 25 million transferred to the state budget, the Secretariat considers that the DRC has mostly met the objective of Requirement 5.1.
5.3 Revenue management and expenditures
Reporting on revenue management and expenditures is encouraged, but not required by the EITI Standard. It is encouraging that the DRC provides some public information on the budget-making process through both routine government systems and EITI reporting. Several stakeholders consulted highlighted the DRC EITI’s expanded disclosures on forward looking projections in the 2018-20 EITI Report, prepared according to a “flexible” approach, and considered that there had been progress towards the objective of strengthening public oversight of the management of extractive revenues. According to article 54 of the LOFIP, there is no earmarked revenues in the extractive sector. However, the DRC has not yet expanded its EITI reporting to disclose additional forward-looking information of relevance for the public debate on resource dependency and extractive revenue sustainability. However, this has not yet included projections for commodity prices, extractive production or revenues.
4.6 Subnational payments
Requirement: Mostly met
The Secretariat’s assessment is that the DRC has mostly met the objective of the requirement to enable stakeholders to gain an understanding of benefits that accrue to local governments through transparency in companies’ direct payments to subnational entities and to strengthen public oversight of subnational governments’ management of their internally-generated extractive revenues. Most stakeholders consulted considered that there had been significant efforts to progress towards the objective, in a context of transition with the implementation of the new Mining Code. The MSG’s comments on the draft assessment consider that the objective of Requirement 4.6 has been fully met. Nevertheless, the Secretariat's assessment is that the objective is still mostly met given doubts about the reliability of disclosures of direct subnational payment.
The DRC EITI has defined a materiality threshold for payments to local governments and has excluded payments of 15% of the mining royalty to the new decentralised territorial entities (ETD). The legal framework in the 2018 Mining Code is not properly implemented and there appear to be several specific agreements on the allocation of a share of the mining royalty revenues to other ETDs (as compensation for overlapping or duplicating industrial facilities) or to fund provincial authorities, that do not appear to be codified in legislation. It is thus difficult to identify the exact recipients of the mining royalty payments. The ETDs' inclusion in the EITI reporting would have required significant outreach in remote mining areas, which was not considered feasible during the pandemic. Some ETDs lack basic public finance management capacity (sometimes manual management) and elected representatives. In its comments on the draft assessment, the MSG reported that it had made available in open format the payments made in 2019 by companies to ETDs in Lualaba, Haut-Katanga, Haut-Luele, Kasai Oriental, Luala, Maniema, North and South Kivu, as well as the revenues declared by the different ETDs. These payments are broken down by ETD and by company, but significant discrepancies between revenues and payments remain, raising questions about the reliability of these declarations. Regarding disclosures of broader sub-national payments, two provincial directorates accounting for less than 1% of total revenue did not report revenue in 2019. However, the number of local government reported as receiving mining royalties in the period under review varies across different sections of the EITI Reports. The MSG decided not to reconcile company payments and provincial authorities' revenues given the “flexible” approach to EITI reporting. Regarding the quality of the data on direct subnational payments in the 2018-20 EITI Report, revenues reported by provincial governments could not be certified by the IGF given the impact of the pandemic (see Requirement 4.9).
5.2 Subnational transfers
The Secretariat’s assessment is that Requirement 5.2 is not applicable in the period under review. The provision in the 2011 Budget law requiring that 10% of total government revenues from oil and gas should be transferred to provinces where oil production takes place, as compensation for environmental damage, is awaiting a ruling from the Ministries of Finance and Budget to become effective. Thus, it was not possible to calculate the value of subnational transfers that should have been executed in the period under review, pending publication of the Ministerial ruling.
6.1 Social and environmental expenditures
Requirement: Mostly met
The objective of Requirement 6.1 is to enable public understanding of extractive companies’ social and environmental contributions and provide a basis for assessing extractive companies’ compliance with their legal and contractual obligations to undertake social and environmental expenditures. The Secretariat’s assessment is that the broader objective of the requirement is mostly fulfilled, and that significant aspects of the requirement have been implemented.
The DRC introduced community development agreements (“cahier des charges”) in the 2018 Mining Code, making it mandatory for companies to define the operators’ social expenditures to the benefit of local communities affected by mining projects. The document must be developed within six months of the exploitation permit being granted, or immediately for companies that are already at the production stage. In addition, the 2018 Mining Law requires companies to make an annual allocation of 0.3% of their turnover for community development projects. The handbook providing guidelines for these allocations was only published in December 2021, which means such requirements were not effective in the period under review. In the oil and gas sector, the Hydrocarbon Code and its implementing regulations indicate that the social impact has to be considered by contractors. Specific funding, mentioned in the Hydrocarbon rule or in contracts, is to be allocated to social projects. The DRC EITI has agreed a definition of mandatory social expenditures in March 2018 and described the challenges related to the application of the legal and contractual documents. No materiality threshold was set for disclosures of these types of payments. The EITI Report discloses such payments, which were subject to all data quality requirements established by the MSG for other significant payments. A total of 11 mining companies out of 52 in production phase, and two out of 6 material oil companies, unilaterally disclosed voluntary or mandatory social expenditures. Based on the low level of reporting of social expenditure, the MSG decided to conduct a thematic study to assess the level of implementation of social and environmental obligations by extractive companies. All information listed in Requirement 6.1.a is provided for these disclosures of mandatory social expenditures, with some minor gaps in the provision of the identity of non-government beneficiaries for four of the reporting companies.
The EITI Report does not devote a specific part to explaining environmental expenditures, but the requirement is applicable in the mining sector. In the mining sector, the financial data is disclosed for payments that can be considered as environmental payments to government based on their name (e.g. the tax on forestry and environment protection). These payments are not explained and disclosed separately from all other tax and non-tax ones and are subject to the same absence of materiality threshold as well as to the same data quality requirements. In the oil and gas sector, no specific environmental expenditures are identified in the EITI Report. The only possible environmental expenditure is the compensation to provinces to offset the environment impact of oil and gas activities.