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FLEGT in Republic of Congo
By: LoggingOff
Published: February 28, 2009
Countries: Republic of Congo
Topics: FLEGT
Document type: VPA updates
Document ID: 3538
View count: 142
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FLEGT in Republic of Congo

This text is taken from the old Loggingoff site (pre 2016), and provides extra detail about the VPA process in Republic of Congo not currently captured in the new country page.

Latest situation

In May 2009, the Republic of Congo became the second country to sign a VPA with the EU with the full support of civil society actors. Negotiations lasted less than one year (June 2008 – May 2009). When the process began, concerns were raised about whether the country’s nascent civil society would be able to counterbalance the power of the forestry industry and ensure the VPA led to meaningful improvement of (forest) governance. Although civil society struggled to raise its concerns, the EU commitment to the participation of local organisations throughout the process was instrumental in ensuring that their demands were addressed. The implementation of the VPA has started and there is a structure in place that allows civil society to play a clear role in the implementation phase. Numerous activities will have to be implemented before the first timber can be shipped. These include clarifying the rights of communities to forest land and strengthening the roles that communities play in the attribution of forest concessions and in forest management. Direct involvement of local communities during the implementation phase will remain key.

The negotiation process and the involvement of civil society

Negotiations to conclude the Congo-EU VPA lasted less than one year (June 2008- May 2009), making it the fastest to date. Little was done in the form of informal pre-negotiations, although a workshop took place on December 2007 to establish the national plan for negotiations, and working groups to define the different sections of the agreement were already up and running three months later. The formal political and technical negotiation sessions were launched in June 2008 and progressed in a hasty pace until both parties signed the agreement on 9 May 2009.

Two bodies were established by the forest administration to facilitate the work of the Congolese side: A technical secretariat in charge of preparing the Congolese negotiating position (and negotiating with the EU), and a national advisory group that was to review and validate all documents in discussion. Both bodies included civil society, government and industry representatives.

When the process began, concerns were raised about whether the country’s nascent civil society would be able to counterbalance the power of the forestry industry and ensure that the VPA led to meaningful governance reform processes. Although participation was not smooth and civil society struggled to raise their concerns, the EU position to demand and commit to ensuring the participation of local groups throughout the process was instrumental in making sure that their concerns were picked up in the process. The establishment of Congolese structures promoting direct dialogue between civil society, the Congolese government and the private sector, as well as the organisation of sessions in Brussels to allow interested European stakeholders to get updates on the process, also supported local civil society involvement by providing spaces where issues could be debated.

While NGOs and indigenous peoples’ representative were involved in negotiations, direct participation of local and indigenous communities was not achieved. It was agreed that for the agreement to become operational, numerous activities would have to occur that will have a direct effect on communities, it is therefore hoped that they will play a central role during the implementation phase.

The VPA in detail

The Congo-EU VPA commits both parties to only trade legal timber. The first step is therefore to agree a definition of legal timber. For Congolese timber to be legal, it must comply with all legislation applicable to the Congolese’s forest and/or plantation sectors (including forestry, land ownership, environment, human rights, labour and trade) and international agreements, such as the Convention on Biological Diversity (CBD) ratified by the Congo. Two separate ‘legality grids’, one for timber coming from forests and one for commercial plantations, were developed. These grids are templates that allow the assessor to know what needs to be checked when assessing the legality of timber and of forestry operations.

The definition of legality was consensually agreed through a multi-stakeholder process including civil society, the Congolese government and the private sector, but the development of the legality grids highlighted many shortcomings and the unsuitability of the forest-related laws and regulations in force, such as clarification of the rights of indigenous and local communities and the involvement of civil society in forest management. The agreement includes commitments to: pass legal texts which ensure the involvement of civil society and local and indigenous communities in forest management; strengthen civil society capacity; and clarify any deficiency in the law that may be discovered during the implementation of the agreement. New legal texts will have to be developed in cooperation with civil society and then agreed and enacted before the first FLEGT license is granted. Close civil society involvement and oversight will be crucial to ensure that this process concludes with a strong text that addresses the weaknesses indentified.

The VPA foresees that the Congolese government ensures there is an update of some existing legal texts and that regulations about implementation of the VPA as well as legal texts to cover other areas are drafted. These reforms will be included in a revision of the legality grids to ensure that the VPA complies with all national, regional and international laws.

Once there is an agreement on which laws should be checked, a Legality Assurance System (LAS) will be set up to trace legal timber and ensure it is not mixed with illegal timber before export. Once there is an agreement on which laws should be checked, a Legality Assurance System (LAS) is set up to trace legal timber and ensure it is not mixed with illegal timber before export. As the Congo-EU agreement stipulates the legal texts that will be the basis of the LAS (this is the legality grids) need to be amended and that new laws must be developed, the grids (and therefore the LAS) will have to also be amended.The LAS covers the entire timber production and control process, including the two legality grids, verification of legality of forest companies, a wood traceability system throughout the supply chain, the issuing of FLEGT licenses and independent audits. The system will apply to all commercial timber and timber products produced, sold in, and exported from the Congo, regardless of whether timber is destined for the domestic or international market. Only timber exported to the EU will receive a FLEGT license, which will be issue by the Forest Product Control Service for Export (SCPFE) under instruction of the Forest Economy General Inspection Unit (IGEF), which is the government agency responsible for overall control of the system.

The Ministry of Forest Economy is the government agency responsible for the implementation of the LAS and for the overall coordination among government services with roles in the system.

The first step in the verification of legality is to check that operators’ are compliant with their requirements to: ensure they have complied with the process through which rights were allocated; have followed the processes required to enter into agreements with communities; pay fees and taxes; and, instigate good labour practices etc. Verification of such compliance involves the responsible government agencies checking documentation and doing field checks, with supervision by IGEF. Frequency of controls depends on the criteria and indicator. Once legality has been proven, the IGEF issues a ‘legality certificate’ that is valid for one year. The legality certificate is therefore issued before transportation and excludes legal compliance along the supply chain.

The second step in the verification is to control and verify the supply chain. The VPA foresees the establishment of a chain of custody system for timber and timber products that confirms legal compliance. The system will include, among others, geo-referencing trees during inventories, bar codes to trace products, and linking different databases to facilitate monitoring. Information will be reconciled in the SIGEF database, which will be hosted by the General Direction of Forest Economy (DGEF) and will integrate all private traceability systems used in Congo. The SIGEF will signal irregularities automatically to the IGEF. If no irregularities are detected, a FLEGT licence will be issued.

Although the  Congo currently has no imported wood and only a small amount in transit and leaving the Country through Pointe-Noire, the traceability system is designed so that it will be able to capture all timber imported into Congo as well as timber in transit. The legality of all timber and timber products will be checked at the Congolese border. Verification and control procedures for timber imported or in transit will be developed during the design of the system. Timber of non-Congolese origin in transit will not be allowed to enter the Congolese supply chain and will not receive a Congolese FLEGT license.

The independent monitor of forest operations that is presently part of the Congolese governance system will continue to provide field level investigations and gather evidence of illegality for a minimum period of 3 years (until 2012). This monitor’s work has previously been done by an international NGO but will continue under a structure of national civil society (which could be supported by international NGOs). It is outlined as a supporting measure to the agreement rather than an integral part of the LAS. An independent auditor will however be an integral part of the LAS system and will add to the work of the monitor by assessing the performance and efficiency of the FLEGT licensing system. It will base its reports on information provided by third parties (i.e. NGOs, local communities, SIGEF data, civil society independent observer structures, Congolese and EU authorities etc.) and its own research. It will provide information to the parties and support monitoring of the VPA’s implementation. Auditor reports will be made available to the public.

Implementation of the agreement will be overseen by a joint Congo-EU structure known as the Joint Implementation Committee. The Committee will oversee and decide measures for the correct implementation of the agreement. It will also be in charge of publishing an annual report with information on activities, progress made and statistics on the agreement.

The Congolese side has established a multi-stakeholder Technical Secretariat, including representatives of the government, civil society and the private sector, to support the implementation of the agreement. The Secretariat will, among others, prepare documents for Joint Implementation Committee meetings; monitor and suggest measures to facilitate the implementation of the agreement; and examine and adopt projects to implement the complementary texts and legislative reforms as foreseen in the agreement.

Involvement of civil society is crucial to ensure the success of the governance reform processes. With this aim, measures should be taken to broaden the participation of civil society and local communities beyond the official structures created as part of the agreement. A good way forward would be to allow for citizens to feed information into the system (this is foreseen as part of the independent audits, which must gather information from all actors including citizens), and to facilitate access to information about progress and measures taken. To address the latter and “ensure a good understanding of the FLEGT licensing scheme by all stakeholders”, specific provisions for access to informationare included in both the text of the agreement and its annexes. Among others, the public will have information available about concession contracts and allocation; harvesting, processing and management documents; national and local taxes paid; verification and control reports; cases of non-compliance with the FLEGT licensing scheme and actions taken; Congo’s forest production statistics; and independent audits.

The agreement also covers the supporting measures required for successful implementation. These include building the capacity of civil society and the government, and completing the legislative framework.

The challenges ahead: implementation of the agreement

The signing of the Congo-EU VPA is a step in the right direction, but the question of whether it will contribute towards improved forest governance in the Congo can only be answered during implementation. The VPA will be considered successful if the FLEGT objectives and agreement commitments (strengthening community land tenure and access rights, ensuring the effective participation of civil society -with specific attention to indigenous peoples – in policy making on forest-governance related issues; increasing transparency and reducing corruption) are met. To this end, the following actions must be prioritised:

  • The development of legislative and regulatory texts foreseen in the agreement.All legislative changes the government must seek close cooperation and agreement with civil society in country. Local communities, whenever texts affect them, must be duly involved in the process.
  • The inclusion of a mechanism to allow local civil society to participate in policy-making.As local communities’ participation in this process has not yet been assured, it is key that this mechanism functions well and this is one area where attention will be focused.
  • Ensuring a good rather than a fast process.The pace of negotiations concerned civil society groups in both Congo and Europe who argued that hurried engagement undermined the quality of proposals to improve governance. If the agreement is to be successful, this trend must be reversed during the implementation of the agreed systems. Giving time to the different actors to engage is particularly important if meaningful participation is expected from local and indigenous communities in decisions that will affect them directly.
  • Ensuring meaningful involvement of local NGOs and communities in the implementation and monitoring of the VPA.This will require the continuation of independent forest monitoring activities and provisions to strengthen stakeholder capacity. Particular emphasis should be put on building the capacity of local communities and indigenous peoples so that they can be directly involved during the implementation phase.
  • Addressing the underlying causes of illegal logging, including corruption.Although improved law enforcement systems, improved transparency and public participation in policy-making and implementation, and third party controls are preconditions to respond to forest corruption associated with illegal logging, adequate sanctions are needed as ‘incentives’ to deter illegal activities.

 

In order to ensure that these key objectives are met and the VPA implementation a success, civil society will concentrate on the following areas:

  • Supporting the government in developing comprehensive and coherent legal texts, in line with national, regional and international commitments, to strengthen the environmental and social weaknesses identified during negotiations
  • Actively participating in the Technical Secretariat supporting the implementation of the agreement
  • Monitoring the implementation of the VPA
  • Developing strong systems to independently monitor forest operations
  • Assessing the impact of the VPA on the livelihoods of local and indigenous communities and proposing measures to minimise negative impacts.