Monday, December 1, 2014

How a well-intentioned U.S. law left Congolese miners jobless

When his father could no longer make enough money from the tin mine, when he could no longer pay for school, Bienfait Kabesha ran off and joined a militia. It offered the promise of loot and food, and soon he was firing an old rifle on the front lines of Africa's deadliest conflict. He was 14.

But what makes Kabesha different from countless other child soldiers is this: His path to war involved not just the wrenching poverty and violence of eastern Congo but also an obscure measure passed by American lawmakers.

Villagers call it "Loi Obama" -- Obama's Law.

The legislation compels U.S. companies to audit their supply chains to ensure that they are not using "conflict minerals" -- particularly gold, coltan, tin and tungsten from artisanal mines controlled by Congo's murderous militias. It was championed by influential activists and lawmakers, both Republicans and Democrats, and tucked into the massive Wall Street reform law known as the Dodd-Frank Act.

A Congolese miner works in a tin mine
A Congolese miner works in a tin mine
The law's supporters argued that it would weaken the militias by cutting off their mining profits.

But the legislation, signed by President Obama four years ago, set off a chain of events that has propelled millions of miners and their families deeper into poverty, according to interviews with miners, community leaders, activists, and Congolese and Western officials, as well as recent visits to four large mining areas.

As it sought to comply with the law, Congo's government began by shutting down the mining industry for months. Then, a process was launched to certify the country's minerals as conflict-free. But the process is unfolding at a glacial pace, marred by a lack of political will, corruption and bureaucratic and logistical delays.

That has led foreign companies to avoid buying the minerals, which has driven down prices. Many miners are forced to find other ways to survive, including by joining armed groups. Meanwhile, the militias remain potent threats.

"The intention of the law was good, but in practice, it was not well thought-out," said Eric Kajemba, director of the Observatory for Governance and Peace, a regional nonprofit group. "This is a country where the government is absent in many areas, plagued by years of war and bad governance, where the economic tissue has been destroyed. The American lawmakers didn't appear to take this into consideration."

 Requests for comment were made to former senator Russell Feingold (D-Wis.), a key backer of the conflict-minerals measure who is now the U.S. special envoy to the Great Lakes region, which includes Congo. But his office said he was not available. The State Department also did not reply to several requests for comment.

As of June, the government had certified just 25 mining sites out of hundreds in South and North Kivu provinces as "green" -- meaning there was no presence of armed groups and there were no children or pregnant women laborers -- according to U.N. monitors. As of October, there were only 11 mines out of more than 900 here in South Kivu where minerals were "tagged" as conflict-free, said Adalbert Murhi Mubalama, the province's minister of mines.

Government and international mine certification agencies, he said, have been unable to audit most mining areas because of their size, poor roads and insecurity. Shabunda territory, where most of South Kivu's mines are located, is almost as big as Belgium and is controlled mostly by a ruthless militia. The government, he said, "can't go there."

Rapid downturn

The United Nations estimates that Congo has untapped mineral reserves worth $24 trillion. Since the late 1990s, militias, rebel groups and armies have plundered these riches, using them to fuel a string of wars that have caused more deaths than any conflict since World War II.

In the United States, the furor over conflict minerals intensified with revelations that multinational firms such as Apple, Intel and Motorola were unwittingly buying conflict minerals to make products such as smartphones and laptop computers. Activists pressured lawmakers to pass the measure in the Dodd-Frank Act.

It quickly had an effect. In the fall of 2010, two months after the law's signing, Congo's government halted mining for six months -- even at facilities not controlled by armed groups. The move had tremendous repercussions in a country where, by some estimates, a sixth of the 70 million inhabitants depend on artisanal mining.

In Luntukulu, a mineral-rich region nestled in rocky hills near the border of Shabunda territory, more than a dozen out-of-work miners joined the Raia Mutomboki militia after the government imposed the ban, village elders and mining cooperative leaders said.

"If we were earning more money from mining, I would not have entered the militia," said Kabesha, now 16, as he sat in a grass hut.

When he joined, he was handed a rifle and taught to shoot. Within months, he was looting villages and fighting government forces and other militias.

Last year, he fled and entered a program to rehabilitate child soldiers. But he's still not attending school.

'A weight on us'

In 2010, before the law passed, miners were selling a kilogram of tin -- about two pounds -- for $7. The world market price averaged $18 a kilo. Scores of buyers came to Luntukulu for minerals. They were exported to smelters around the world, from which American companies purchased them.

Now, the miners get only $4 for a kilo of tin -- even though the global market price this year has averaged $22 per kilo. None of the 15 mines in Luntukulu that produce tin and gold have been certified as conflict-free.

This year, only 12 buyers showed up, miners and community leaders said.

Some of the untagged minerals are bought by Chinese and Indian firms that are not subject to the Dodd-Frank law. But the loss of American and other Western clients has been keenly felt.

As in many mining communities, with less money flowing in, shops in Luntukulu have closed. Many people here struggle to feed their families through farming.

"If Obama's Law wasn't signed, the ban would not have existed," said Waso Mutiki, 41, president of the miners cooperative in Luntukulu. "It destroyed everything."

Even at the few mines certified as conflict-free, miners face hardship. Near Nzibira, a village about 15 miles from here, miners in blue uniforms dig in pits, searching for tin ore. The minerals are placed in tagged bags, indicating they meet international standards.

But the miners still get $4 per kilo. That's because there are only a few trading houses in the provincial capital, Bukavu, due to the limited supply of tagged minerals and delays in providing government licenses to buy them, miners and community leaders said. The houses fix the price, they added.

"The law of Obama is like a weight on us," said Michel Mushagalusa, 30, vice president of the mining cooperative in Nzibira.

Some activists and researchers say that minerals aren't the core cause of Congo's war -- that there are other, more powerful factors, such as political and ethnic struggles and conflicts over land. And regulating the minerals, they say, does little to thwart the militias.

Supporters of the American law say the plundering of minerals is a key stimulant of the conflict. They say the legislation has spurred measures by corporations and African governments to help end the illegal trade. But even some of the law's biggest proponents say the Obama administration and tech companies should have provided aid as the legislation was being implemented

"Four years went by with almost no support for Congolese miners," wrote the Enough Project, a powerful activist group, in an open letter published Oct. 30. It added that American and other donors had only recently set up aid programs, "but they have yet to be felt by mining communities."

Thriving from gold

In a report published this past summer, the Enough Project found that armed groups were no longer present at two-thirds of tin, tungsten and coltan mines in three eastern Congo provinces and cited the law as the reason. Nonetheless, some of the most brutal militias are still thriving in those provinces and others.

In some areas outside of Luntukulu and in Shabunda territory, the Raia Mutomboki are the lords.

The militia, whose name means "outraged citizens" in Swahili, sells diggers access to mining pits and takes a percentage of the minerals unearthed, a large portion of which are smuggled out through neighboring countries.

The fighters also exact taxes at checkpoints.

"Almost all our mines are controlled by Raia Mutomboki," said Mozart Manigua, 42, president of a cooperative that oversees 20 mines in Kimbli, a vast area within Shabunda. Local people "have no choice but to work for the militia."

In other areas, militias have switched to selling palm oil, charcoal, marijuana, cattle and soap, said community leaders, activists and U.N. monitors. Their income is hardly as much as they earned from minerals, but it's enough to continue destabilizing eastern Congo.

Gold, though, remains a lucrative financial pipeline for armed groups, according to U.N. investigators. By some estimates, $400 million in gold from artisanal mines was smuggled out last year, most of it fueling armed actors and tainting the global gold supply.

Increasingly, Congo's army is becoming a major player in the conflict-minerals trade.

Soldiers help smuggle untagged minerals out through Rwanda, Uganda and Burundi, according to U.N. experts and Congolese government and law enforcement officials.

"It's some of the big commanders," said Mubalama, the mining minister.

By Sudarsan Raghavan,

Source: The Washington Post

How Obama blatantly disregards the law

President Obama likes to claim he's been forced into rogue executive actions, laying the blame on an intransigent Congress. In fact, his lawlessness is coldly calculated, dating back to his days as a Chicago community organizer.

Consider what he wrote on page 276 of his 1995 memoir, "Dreams from My Father," reflecting on his decision to study law: "I had things to learn in law school, things that would help me bring about real change. I would learn power's currency in all its intricacy and detail, knowledge that I could now bring back to where it was needed…bring it back like Promethean fire."

Obama fancies himself a modern-day Prometheus stealing laws from the oppressive Founding Fathers for the benefit of the oppressed.

"I just took an action to change the law!" he reminded Hispanic activists in Chicago last week, referring to his executive amnesty.

Learning to run around American law was his main purpose in attending Harvard Law School, where he quickly sidled up to Professor Derrick Bell, who bashed the Constitution as a form of "original sin."

There was no reverence in studying the founding documents and the system they created, no desire to work within America's legal framework and enforce existing law.

No, Obama didn't study federal statutes to defend them. He studied them to game them, sabotage them. To abdicate them.

Faith leaders and activists protest immigrant deportations in front of the White House
Protest immigrant deportations in front of the White House
On immigration

Exhibit A is his illegal mass amnesty for illegals.

According to a new report by the Congressional Research Service, the Hill's nonpartisan think tank, the president's authority to grant amnesty is limited to illegal aliens facing emergency situations — such as wars or earthquakes, floods and droughts — that prevent their safe deportation.

The almost 5 million illegals getting a pass from Obama face no such hazards.

By giving them work permits, Obama's also violating the Immigration and Nationality Act's intent of protecting domestic labor.

"Congress is unlikely to have defined ‘unauthorized alien' and prohibited the knowing hiring or employment of such aliens if it contemplated the executive branch granting work authorization" to millions of illegals, wrote CRS legislative attorneys Kate M. Manuel and Michael John Garcia.

What's more, the Supreme Court in its 1985 "Heckler v. Cheney" decision struck down presidential policies that abdicate statutory duties.

"The Heckler Court expressly recognized the possibility of an executive agency ‘consciously and expressly adopt(ing) a general policy (of not enforcing the law) that is so extreme as to amount to an abdication of its statutory responsibilities,'" they added.

There is little doubt that ordering Homeland Security not to remove half the illegal population is an "extreme" policy. The president has "consciously" decided to abdicate the statutory duties Congress assigned him in the Immigration and Nationality Act, which expressly mandates illegal aliens "shall be detained for removal proceedings."

On school discipline

But Obama's not just flouting immigration statutes. He's also reinterpreting the nation's civil-rights laws.

For starters, Obama has directed his education secretary and attorney general to pressure public school districts to limit the number of minority students they suspend.

To comply with the policy, Minneapolis Public Schools and other districts have adopted de facto racial quotas in discipline.

"MPS must aggressively reduce the disproportionality between black and brown students and their white peers every year for the next four years," the Minneapolis school superintendent explains. "This will begin with a 25 percent reduction in disproportionality by the end of this school year; 50 percent by 2016; 75 percent by 2017; and 100 percent by 2018."

By referring lower and lower shares of black kids for discipline until they equal white levels, MPS is favoring one race over another in violation of the Equal Protection Clause.

"The new discipline policy is legally and constitutionally suspect," US Civil Rights Commissioner Peter Kirsanow asserted.

A federal appeals court in its 1997 People Who Care v. Rockford Board of Education decision declared unconstitutional a Rockford, Ill., policy that forbade school officials referring "a higher percentage of minority students than of white students for discipline."

Former Education Department lawyer Hans Bader notes the court ruling also "explicitly rejected the argument that such a rule is permissible to prevent ‘disparate impact,'" a dubious civil rights theory not found in the text of Title VI of the Civil Rights Act.

"This provision cannot stand," the Chicago-based 7th Circuit unanimously ruled. "Racial disciplinary quotas violate equity in its root sense. They entail either systematically over-punishing the innocent or under-punishing the guilty. They place race at war with justice."

"In the event of litigation," Kirsanow said, "I expect that the 8th Circuit (which includes Minnesota) will find its sister circuit's reasoning persuasive."

On housing

Also, Obama is illegally rewriting both the Fair Housing Act and Equal Credit Opportunity Act in order to pressure lenders and insurers into setting quotas for minority homebuyers.

Last month, a federal judge stepped in on behalf of insurers. US District Judge Richard Leon struck down HUD's 2013 rule using disparate impact to enforce the FHA against insurers. He said the administration had a lot of "chutzpah" reading disparate impact into the statute.

"This is yet another example of an administrative agency trying desperately to write into law that which Congress never intended to sanction," he wrote in his opinion.

Leon ruled the FHA unambiguously prohibits only policies and practices that intentionally discriminate, not ones based on risk analysis and other legitimate business needs of the home insurance industry.

For the administration to claim otherwise is "wishful thinking on steroids," the judge scolded.

Removing important risk factors from insurance rating plans just because they may have an adverse effect on favored groups would destroy accurate risk assessment and unfairly raise premiums for other policyholders, he said.

But that's exactly what Obama seeks.

In the name of "racial equity," he's trying to eliminate risk-based pricing not only for home insurance policies but also home loans.

HUD has teamed up with the Justice Department and the Consumer Financial Protection Bureau to sue mortgage lenders for more than $1 trillion in disparate impact claims, arguing they charged minority borrowers a "racial surcharge."

The Court is poised to stop this illegal witch hunt, after agreeing to hear a case against disparate impact brought by the state of Texas — Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. It's widely expected to reach the same conclusion as the DC court.

"Fortunately for us all," Leon concluded, "the Supreme Court is now perfectly positioned to finally address this issue in the not-too-distant future."

On hiring

Meanwhile, EEOC Chairwoman Jacqueline Berrien, a former NAACP activist, is unlawfully expanding enforcement of Title VII of the Civil Rights Act to pressure employers to hire minorities with criminal records.

For example, she recently sued Freeman Companies and Kaplan Higher Education Corp. for allegedly running discriminatory background checks on job applicants.

The charges were so egregiously groundless that both judges hearing the cases scolded her department for ever bringing them, before summarily tossing them out.

One judge slammed her prosecutors for using "cherry-picked" data and hiring expert witnesses who engaged in "scientific dishonesty." In court documents, he also said they attempted to "pump up" statistics to make it look like employers were biased.

Both cases charged employers were racist simply for conducting criminal background checks and credit checks for all their job applicants, whites and blacks equally.

Even though, as the court pointed out, that's exactly what Berrien and every other Cabinet official does before they hire their own workers for government jobs.

Nine state attorneys general recently complained the administration was "compel[ling] employers to hire convicted criminals."

"We are troubled that your agency's true purpose may not be the correct enforcement of the law, but rather the illegitimate expansion of Title VII protection to former criminals," they wrote in a recent letter to Berrien. "It is not your agency's role to expand the protections of Title VII under the pretext of preventing racial discrimination.

"If Congress wishes to protect former criminals from employment discrimination, it can amend the law," they added. "Title VII's prohibition on practices that have a disparate impact should not be used as just another regulatory tool to advance your agency's policy agenda."

But Berrien is not backing down. She has reissued her directive to employers to reconsider minority job applicants "screened out" due to criminal records.

Over and over, this administration has run roughshod over the stated will of legislators, even rewriting statutes to suit its radical agenda.

When Obama swore to faithfully execute the nation's laws, he clearly intended to do no such thing.

By Paul Sperry

Source: The New York Post