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VI. AngloGold Ashanti – Starting Gold Exploration Activities

The installation of the transitional government in Kinshasa in June 2003 sparked vigorous competition for mining rights in the DRC.  Numerous mining companies sought to win rights to develop parts of OKIMO’s vast gold concession in northeastern Congo. While the transitional government had only minimal administrative control over some of the areas in the OKIMO concession, and no control over others, this did not stop OKIMO from signing new contracts, nor did it stop private foreign companies from starting mining and exploration operations.  As of September 2004, eleven mining companies had signed contracts with OKIMO to explore or mine the gold in northeastern Congo, the majority of them from South Africa.¹⁷² 

The dilapidated offices of the state gold company Kilo-Moto (OKIMO) in Bunia.  OKIMO has exclusive mining rights to a zone of 83,000 square kilometers, an area three times the size of Belgium.  The area is considered to be one of largest unexplored goldfields in Africa. © 2004 Human Rights Watch

Competition for the Mining Rights to the Mongbwalu Mines

AngloGold Ashanti Ltd. is one of the largest gold production companies in the world with the majority of its shares owned by the international conglomerate, Anglo American plc.¹⁷³  AngloGold Ashanti was established in October 2003 by a merger of two large African gold mining companies: Ashanti Goldfields Ltd. and AngloGold Ltd.  The promising gold mining concession in northeastern Congo had become part of the Ashanti Goldfields portfolio in 1996 when the company bought a stake in a joint venture operation between Mining Development International and OKIMO called Kilo-Moto International Mining s.a.r.l. (KIMIN).¹⁷⁴  This purchase gave Ashanti Goldfields part of the rights to the highly lucrative Concession 40 which included 2,000 square kilometers around Mongbwalu.  

The competition for the control of mining concessions throughout the DRC was intense during the first and second Congo wars in 1996 and in 1998.¹⁷⁵  President Laurent Kabila frequently renegotiated mining agreements as his interests changed, causing considerable confusion for companies.  Ashanti Goldfields temporarily lost the rights to Concession 40 in 1997 to Russell Resources International Ltd. in what the company called “unusual circumstances”¹⁷⁶, but its rights were reinstated the following year.¹⁷⁷  On June 23, 2000 the partnership between OKIMO and Ashanti Goldfields was officially established as a new joint venture called Ashanti Goldfields Kilo s.a.r.l.(AGK) replacing the defunct KIMIN.¹⁷⁸  Just over a year later, on September 25, 2001, the government of President Laurent Kabila approved an amendment to the AGK joint venture contract granting it mining rights to all of Concession 40, an area of over 8,000 square kilometres in the heart of Ituri with Mongbwalu at its center, a significant increase on the 2,000 square kilometers the company bought a few years earlier.¹⁷⁹  When Ashanti Goldfields merged with Anglo Gold in October 2003, Concession 40 became part of the portfolio of AngloGold Ashanti.

AngloGold Ashanti Seeks to Start Exploration Activities in Mongbwalu, 2003

When the transitional government was installed in June 2003, it supposedly assumed control over all of the Congo, but in many regions this control was ineffective on the ground. Ituri was one of those regions. Neither the Ituri Interim Assembly (April 2003-June 2004) nor an agreement with local armed groups (May 2003), as described above, succeeded in bringing the area under effective administration by the transitional government. Njabu, head of the FNI, and Lubanga, head of the UPC, were called to Kinshasa to discuss establishing order in Ituri in August 2003 along with other armed group leaders.  All parties signed a memorandum of understanding to end hostilities, but like previous agreements it was not upheld.  Transitional government officials in effect detained Njabu and Lubanga in the capital, where they lodged at the Grand Hotel.¹⁸⁰ But their required residence in Kinshasa did not materially change the situation on the ground, perhaps because they were in frequent telephone contact with their followers in Ituri.¹⁸¹  Throughout the later part of 2003 and into 2004, the armed groups continued skirmishes with each other and with MONUC, carrying out abuses against civilians throughout Ituri. U.N. peacekeeping forces made little progress in most of the region, although they restored order in the capital, Bunia.

Civilians in Ituri fleeing from armed attacks.  Displacement has been frequent in Ituri, especially in the gold mining regions.   Tens of thousands of civilians fled their homes into the forests in the Mongbwalu area to escape their attackers between 2002 and 2004.  Many of them did not survive. © 2003 Marcus Bleasdale

On March 7, 2003, before the start of the new transitional government in DRC, a representative of AngloGold Ashanti, Trevor Schultz, participated in a board meeting with their joint venture partner OKIMO.¹⁸²  At the meeting, the participants reportedly discussed launching activities for gold exploration drilling in Mongbwalu.¹⁸³  At the time, the FNI together with the Ugandan army were involved in military operations in areas just outside Mongbwalu.  They attacked and took Kilo on March 10, 2003 massacring at least one hundred women and children and abducting many others before moving on to Mongbwalu on March 13, 2003.  Between March and June 2003 as the Ugandan soldiers departed, the FNI combatants established their effective control over the Mongbwalu area by military means, as detailed above.  In the months following their initial board meeting when AngloGold Ashanti may have been considering beginning activities in Mongbwalu, the FNI exercised de facto control over the land, including Concession 40, and people in that area. It held the airport and controlled access by roads so that travellers needed FNI authorization to enter and to leave the area. FNI combatants also controlled entry to and exit from the mines and set up a system to collect taxes for any entry to Mongbwalu or the mines.

Both during military operations and after having taken effective control of the area, FNI combatants committed grave human rights abuses and violations of international humanitarian law. By July 2003 the human rights violations in Ituri had been documented in reports by Human Rights Watch, by other organizations, and in the press¹⁸⁴ and the prosecutor of the International Criminal Court had announced that crimes committed during combat in Ituri would be among his first targets of investigation.¹⁸⁵ In October 2002, June 2003, and October 2003, the U.N. panel of experts detailed links between the exploitation of natural resources and continued war, with its related abuses, including in Ituri.  In an annex to their October 2002 report the U.N. panel of experts detailed concerns about compliance with the OECD Multinational Guidelines by eighty-five multinational companies operating in the DRC including Ashanti Goldfields (the predecessor to AngloGold Ashanti).¹⁸⁶  Ashanti Goldfields denied the allegations in a one-page response to the panel in early 2003.¹⁸⁷ No further investigations were conducted and in their final report the panel determined that all issues with Ashanti Goldfields and forty-one other companies had been resolved.¹⁸⁸ The panel however added an important caveat in their final report stressing that “resolution should not be seen as invalidating the panel’s earlier findings with regard to the activities of these [companies]”¹⁸⁹, and thus left open the question about whether companies such as Ashanti Goldfields may have violated the OECD guidelines in their activities (see Chapter VII below for further discussion of the OECD guidelines and the DRC).¹⁹⁰  The panel’s attention to the matter and Ashanti Goldfields’ official response illustrated that Ashanti’s representatives were aware of concerns expressed by the U.N. and other organizations about the link between the conflict and the exploitation of resources such as gold.

In October 2003, AngloGold Ashanti representatives discussed the company’s intentions to start gold exploration drilling in Mongbwalu with two Congolese vice-presidents and two ministers.¹⁹¹  In its December 7, 2004 letter to Human Rights Watch, the company wrote that “These [government] officials were supportive of AGK’s intentions.”¹⁹²

According to one employee of AngloGold Ashanti, it was Jean-Pierre Bemba, a vice-president of the transitional government for economy and finance who suggested the company deal with FNI.  The company employee said that Bemba told them, “Go and talk to the little guy in the Grand Hotel.”¹⁹³ Njabu, small in size, was then still residing at the Grand Hotel in Kinshasa. When asked about this exchange by a Human Rights Watch researcher, Bemba replied, “I told them they [AngloGold Ashanti] could start mining if they wanted to. It wasn’t I who signed their contract, it was the previous government. Why would I tell them to deal with the FNI? They aren’t even in the government.”¹⁹⁴  The discussions took place just weeks after FNI combatants carried out a killing spree in September 2004 to areas east of Mongbwalu in Concession 40 brutally killing scores of civilians.  In a follow-up letter to Human Rights Watch on December 13, 2004, AngloGold Ashanti wrote that Vice President Bemba assured the company that Ituri was safe and stated Mr. Bemba “urged the company to continue with its exploration program in the region.”¹⁹⁵

AngloGold Ashanti develops a relationship with the FNI armed group          

There are serious questions about the relationshipthat AngloGold Ashanti established with the FNI in order to facilitate their gold exploration activities in Mongbwalu.  AngloGold Ashanti’s official dealings and its mining contract were with the transitional government in Kinshasa, but the government did not physically control the area around Mongbwalu, the key mining site.  While government ministers may have expressed support for AngloGold Ashanti’s gold exploration program, as described in the company’s December 7, and December 13, 2004 letters to Human Rights Watch, such verbal support did little to change the realities on the ground.  Mongbwalu was under the de facto control of the FNI armed group who had no legal authority over the OKIMO concession and was not a legitimate administrative agent of the transitional government; it had rejected disarmament of its combatants and participation in the peace process and it exercised its control through the open use of force.  In light of the fact that the transitional government exercised no control over Mongbwalu, AngloGold Ashanti representatives began establishing a relationship with the FNI, an armed group with an atrocious record of human rights crimes who continued to carry out serious and widespread abuses even as they entered discussions with AngloGold Ashanti representatives.¹⁹⁶ 

By entering into a relationship with the FNI who had effective control over the Mongbwalu gold mining area, AngloGold Ashanti delivered material benefits and prestige to the FNI, as discussed below.  These resources could in turn be used to further FNI control over the area and help in resisting efforts by the transitional government, the United Nations and other actors to end violence and human rights abuses in Ituri. 

The start of a relationship with the FNI was not the first time AngloGold Ashanti had made contact with an armed group responsible for human rights abuses.  In May 2002, when the war was still being fought in northeastern Congo and more than a year before a national transitional government was installed, Ashanti Goldfields (the predecessor to AngloGold Ashanti) had sent a representative to assess the situation in Mongbwalu.¹⁹⁷ During the following six months, a company representative made contact with the UPC armed group that then controlled Mongbwalu to discuss starting gold exploration activities.¹⁹⁸  The UPC had won control of Mongbwalu and surrounding areas after a battle with Lendu combatants that killed some 800 civilians, many of them slaughtered on the basis of their ethnicity.   In late September 2002, UPC leader Lubanga asked the OKIMO director in Bunia, a supporter of the UPC, to draw up conditions for mining once the UPC took Mongbwalu, as described above. The OKIMO official replied that the UPC needed to provide clear directives to, and complete support for, OKIMO in its negotiations with Ashanti Goldfields. He deplored the joint venture contract provisions and castigated the company for being an “arrogant purchaser.”¹⁹⁹

After the FNI pushed the UPC out of Mongbwalu in the first half of 2003, AngloGold Ashanti was also prepared to hold discussions with them.  Following discussions with transitional government officials, AngloGold Ashanti representatives met with self-styled FNI president Njabu while he was in Kinshasa in late 2003 to apparently ask for permission to start gold exploration drilling activities in Mongbwalu, necessary because the FNI were in physical control of the mines and surrounding territory.  In an interview with a Human Rights Watch researcher Njabu said,

The government is never going to come to Mongbwalu.  I am the one who gave Ashanti²⁰⁰ permission to come to Mongbwalu.  I am the boss of Mongbwalu.  If I want to chase them away I will.  It is not Bemba who controls there.  The contract for Ashanti is with the government but we [the FNI] control Mongbwalu so they need to come to see me if they want to work there.²⁰¹

As a result of the meetings with AngloGold Ashanti officials, Njabu confirmed in writing the company could start work in Mongbwalu and informed other FNI leaders including the FNI commissioner of mines, Mr. Basiani, and the FNI commissioner of defense, Commander Iribi Pitchou Mbodina, of his decision, instructing them to co-operate with the company.²⁰²    As AngloGold Ashanti received permission from the FNI to start operations in Mongbwalu, FNI combatants were returning from their murderous campaign of ethnic killings they carried out between July and September 2003 in Drodro, Nizi, Fataki, Bule and Largo, villages in the vicinity of Mongbwalu, where they had left some of their victims dead in the streets with their arms tied, sticks in their rectums, and body parts cut off, as described above.

In setting up a relationship with the FNI resulting in mutual benefits, AngloGold Ashanti may have violated a U.N. arms embargo on eastern DRC.  The U.N. Security Council passed resolution 1493 in July 2003 demanding that “no direct or indirect assistance, especially military or financial assistance, [be] given to the movements and armed groups present in the DRC.”²⁰³  It specifically set up an arms embargo on “all foreign and Congolese armed groups and militias operating in the territory of North and South Kivu and of Ituri, and to groups not party to the Global and All-inclusive agreement.”²⁰⁴  The U.N. group of experts investigating breaches to the arms embargo stated in a report to the U.N. security council in January 2005 that AngloGold Ashanti could arguably have violated the arms embargo through their direct payment and assistance to the FNI, an embargoed party.²⁰⁵  The group of experts requested further clarification on the matter from the U.N. security council sanctions committee.  In an April 27, 2005 e-mail communication to Human Rights Watch, AngloGold Ashanti wrote, “There has been no intention on the part of AngloGold Ashanti to violate the embargo either acting by itself or in concert with any party.”²⁰⁶   While the company may not have had an ‘intention’ to break the embargo, Human Rights Watch believes that the decision by AngloGold Ashanti to work in a context of violence and conflict, such as that of Mongbwalu, increased its risks and placed the company on the thin edge of ethical and responsible business. 

Floribert Njabu (left), President of the FNI.  © 2004 Human Rights Watch

AngloGold Ashanti benefits from its relationship with the FNI armed group

Having received permission from the FNI to start gold exploration activities, AngloGold Ashanti representatives started to conduct visits to Bunia and Mongbwalu from the company’s office in Uganda, a much closer logistical support base than the company’s office in Kinshasa. AngloGold Ashanti’s consultant, Jean Claude Kanku, went to Bunia where he was seen several times in the company of FNI representatives, including the FNI commissioner of defense, Commander Iribi Pitchou, who acted as leader of the FNI while Njabu was held in Kinshasa.²⁰⁷  In an interview with a Human Rights Watch researcher, Commander Pitchou confirmed that he had regular contact with AngloGold Ashanti representatives in Bunia and Uganda.²⁰⁸ A primary concern for starting gold exploration drilling was security and the company representatives including Ashley Lassen, (Consultant and AngloGold Ashanti’s head of office in Uganda), Desire Sangara (AngloGold Ashanti’s head of office in DRC), Howard Fall (geologist and project manager for Mongbwalu operations), Jean Claude Kanku (consultant), accompanied by an OKIMO representative, consulted Emmanuel Leku, the administrator of the Ituri Interim Assembly, on this question in October 2003. Leku told them that it was too dangerous to visit Mongbwalu and that his administration did not control the area.²⁰⁹  The representatives also discussed plans to start activities in Mongbwalu with the head of the MONUC office in Bunia, Dominique Ait-Ouyahia McAdams. She and her staff told them that the time was not right for the start of operations in Mongbwalu.²¹⁰  Engaged in trying to reduce the power of local armed groups, MONUC staff were unlikely to support any arrangements which would strengthen or grant prestige to the FNI.   Due to security concerns, insufficient capacity, and logistical complications, MONUC peacekeeping had not then deployed to Mongbwalu.

Despite the caution from the administrator and MONUC officials, AngloGold Ashanti representatives went to Mongbwalu in November 2003, accompanied by FNI commissioner Commander Pitchou, still acting in place of FNI leader Njabu.  The AngloGold Ashanti visit took place the same month as FNI leaders and combatants carried out a series of arbitrary arrests and summary executions against civilians in Mongbwalu, including the killing of Mr. Choms who had applauded the arrival of a U.N. plane which he hoped would bring peace to the area.  In an interview with a Human Rights Watch researcher, Commander Pitchou explained how he helped AngloGold Ashanti get installed in Mongbwalu. He said,

President Njabu had given Ashanti written permission in Kinshasa.  Ashanti said they would rebuild roads and hospitals for us - they promised us this.  I took the Ashanti delegation to Mongbwalu in November 2003.  We held joint meetings there and met many workers. On other trips I sent my chief of staff to accompany them.  We are in regular contact with them, even with their headquarters in London.²¹¹  I have spoken to Mr. Sangara [Head of AngloGold Ashanti in Kinshasa] myself and with Jean Claude Kanku [AngloGold Ashanti consultant based in Kampala].  We have given them guarantees of security.²¹²    

In November 2003 and on February 7 and March 17 and 18, 2004 AngloGold Ashanti  representatives including the designated project manager for the operation, Howard Fall, consultant Jean Claude Kanku, and engineer Mark Hanham, carried out at least three site visits to Mongbwalu, often accompanied by FNI armed group representatives.²¹³  At that time, FNI combatants continued to carry out their ongoing ‘witch hunt’ in Mongbwalu and its immediate vicinity against Hema women and other opponents.  Victims accused of witchcraft were often brutally killed after ‘judging’ ceremonies by local spiritual leaders (see above). 

In February 2004, Njabu evaded officials keeping him in Kinshasa and, using a false name and a round-about route, managed to arrive in Mongbwalu.  Njabu confided to supporters that he was returning to Mongbwalu to profit financially from the presence of the new investors.²¹⁴ Soon after arriving back, Njabu organized a public meeting to direct the local population and FNI combatants to not block the work of AngloGold Ashanti.²¹⁵ He then set up his headquarters in Mongbwalu. After their March mission, an AngloGold Ashanti official, Howard Fall, reported—in writing--that Njabu told them they were “welcome in the area, and would be allowed to carry out their activities unhindered.” He specifically assured them that “they need not to be alarmed by the presence of armed militia.”²¹⁶  While AngloGold Ashanti representatives may have been provided with security assurances, the local population were not.  Throughout February 2004 and in the months that followed, FNI combatants frequently arrested civilians for failure to pay ‘taxes’ or participate in forced labor, often beating and torturing their victims (see above). 

From May 2004 AngloGold Ashanti brought some thirty-five expatriate geologists, engineers and security personnel to Mongbwalu to assist with their exploration drilling activities.²¹⁷  Company executives talked publicly about launching mining activities in Mongbwalu claiming the area was a “huge gold province.”²¹⁸  Charles Carter, Vice President at AngloGold Ashanti, stated in a mining forum that the company had made preparations to “commence exploration drilling on the Kimin prospect [OKIMO] in the Ituri region of the DRC,” adding “while this is obviously a tough environment right now, we are looking forward to the opportunity to fully explore the properties we have in the Congo, believing that we now have access to potentially exciting growth prospects in Central Africa.”²¹⁹  

Not surprisingly, security for personnel and company property in Ituri was an important issue. AngloGold Ashanti contracted with the private security company ArmorGroup International Ltd. to furnish armed guards for their activities and lodgings of company staff.²²⁰ As a result of the relationship they established with the FNI, AngloGold Ashanti was able to access the gold producing areas in Mongbwalu for exploration drilling benefiting from security against any possible attacks by local militias.

Howard Fall, manager of the AngloGold Ashanti project in Mongbwalu, confirmed the company had contact with the FNI and that the armed group had granted permission for the company to work in Mongbwalu, but he added that there “was no relationship with Njabu.”²²¹   Other AngloGold Ashanti employees expressed different views.   A number of witnesses told a Human Rights Watch researcher that an AngloGold Ashanti consultant had frequent contact with the FNI leaders, including Njabu, often acting as a bridge between the company and the armed group.²²²  Human Rights Watch also learned that AngloGold Ashanti knew there were possible difficulties in having a direct relationship with the FNI and hence employed consultants to facilitate such discussions.²²³  In its April 27, 2005 e-mail communication with Human Rights Watch the company denied the allegations, though they did add that on the occasions where there had been “unavoidable contact” with the FNI, the company had sought to ensure such contact was “transparent” and was “directly between ourselves and the militia group.”²²⁴

Benefits for the FNI Armed Group

As a result of the relationship with AngloGold Ashanti, the FNI obtained important benefits for the movement and certain of its leaders. The company’s local consultant in Mongbwalu claimed that he told the FNI, “We could not help them openly but we could assist them in others ways.”²²⁵ When Njabu asked money from AngloGold Ashanti’s consultant based in Uganda, Ashley Lassen, he got it. Lassen told a Human Rights Watch researcher in May 2004 that the situation was complex. “We don’t want to cut Njabu out,” he said.  “He needs to feel included.  He just wants money and then he will go away.  We have given him a little, a few hundred dollars here and there, but that is all.  We know how to deal with people like him.”²²⁶  Another close observer to events in Mongbwalu also told Human Rights Watch that payments were being made by AngloGold Ashanti to the FNI, though he believed the amounts being paid were higher.²²⁷ When questioned about payments to the FNI in an interview with Human Rights Watch researchers in July 2004, AngloGold Ashanti’s Howard Fall strongly denied any form of financial assistance to the FNI.²²⁸ 

The denials about financial assistance to the FNI armed group were contradicted by AngloGold Ashanti in February 2005 when the company’s spokesperson, Steven Lenahan, was quoted in various press reports detailing payments the company had made to the FNI.²²⁹  Responding to questions from Human Rights Watch about such payments, AngloGold Ashanti responded in an e-mail communication on April 27, 2005, that AngloGold Ashanti had made an $8,000 payment to the FNI in January 2005 “under protest and duress” after the FNI threatened the “safety of staff and the company’s assets.”²³⁰  In the same e-mail communication, AngloGold Ashanti added that the company had sought the advice of the Bunia based District Commissioner before making the payment, though the company stressed the payment was never “approved by executive management at AngloGold Ashanti” and that such payments were “not consistent with AngloGold Ashanti’s business principles.”²³¹  AngloGold Ashanti further confirmed in its April 27, 2005 e-mail that the company had paid the FNI a levy of six US cents per kilogram of cargo flown into the local airport at Mongbwalu.  It stated that this had been “common practice” until September 2004 when it came to the attention of company officials in Kinshasa and in light of “the fact that it contravened the provisions of the U.N. resolution, it was discontinued.”²³²  AngloGold Ashanti’s spokesman stated to journalists that the company still believed the risks associated with operating in Mongbwalu were “manageable.”²³³

In addition to the payments described above, AngloGold Ashanti provided various other forms of support to the FNI armed group in Mongbwalu, including some assistance with logistics and transportation.  In an environment of extreme poverty, minimal infrastructure and continued insecurity, such assistance was important for the activities of the FNI.  In the context of Ituri, AngloGold Ashanti knew, or should have known, that the FNI armed group they were giving assistance to was responsible for widespread human rights abuses. Njabu and other senior FNI representatives used the 4x4 AngloGold Ashanti vehicle so often that the company began insisting that they put their requests in writing so transportation arrangements could be better planned.²³⁴  AngloGold Ashanti also permitted FNI leaders to travel on planes they had hired for flights from Mongbwalu to Beni or Kampala.²³⁵  Throughout the period of late 2003 and into 2004, as FNI leaders were getting such benefits from AngloGold Ashanti, FNI combatants continued to carry out their policies of witch hunts, arbitrary detentions, torture and forced labor.  Some victims were so badly brutalized for not paying taxes or carrying out the FNI’s policy of forced labor that they fled to Bunia or other places hundreds of kilometers away seeking safety (see above).   

A United Nations group of experts monitoring the arms embargo on eastern DRC reported in January 2005 that AngloGold Ashanti also provided Njabu, the FNI leader, with his house in Mongbwalu.²³⁶  When Human Rights Watch interviewed Njabu in Mongbwalu in May 2004 he was living in a house on the AGK concession (of which AngloGold Ashanti is a majority stakeholder).  As witnessed by Human Rights Watch researchers, Njabu’s house was guarded by FNI combatants, some of them child soldiers, and was used as the main headquarters of the FNI armed group; numerous FNI planning and strategy meetings were held on the premises. When granted a request to meet with Njabu and other members of the FNI armed group, Human Rights Watch researchers were directed to the house of Njabu on the AGK concession.²³⁷  In its April 27, 2005 e-mail correspondence to Human Rights Watch, AngloGold Ashanti confirmed that the FNI occupied several of the houses on the property acquired by the company “without either seeking our permission or receiving our approval.”²³⁸  AngloGold Ashanti did not report how their local representatives who lived in another house on the property a few hundred meters away reacted to this, nor whether advice was sought from their headquarters on the matter or if any measures were taken to remove the FNI from the company’s property.

In addition to these material benefits, AngloGold Ashanti representatives also intervened with local authorities and U.N. officials on behalf of the FNI, both for individuals and for the group. On one such occasion an AngloGold Ashanti consultant, Ashley Lassen, interceded with MONUC officials.  In an e-mail sent on March 20, 2004 to senior MONUC officials based in Ituri, Lassen expressed his view that the FNI were weary of fighting and wanted a peaceful settlement, if their personal safety could be guaranteed.  He went on to prevail on MONUC to “adopt a conciliatory stance in their dealings with some of the armed groups.”²³⁹  MONUC viewed this e-mail as an attempt to promote favor for the FNI armed group.²⁴⁰

The FNI further capitalized on their relationship with AngloGold Ashanti. Their association with a powerful, rich multinational corporation offered the possibility for increasing their legitimacy locally and at the national level.  Commentators in Kinshasa noted that few of the national politicians had taken an interest in Njabu until AngloGold Ashanti expressed its desire to start activities in Mongbwalu. In an interview with Human Rights Watch, Njabu remarked that President Kabila and Vice President Bemba had contacted him directly in relation to gold mining in Mongbwalu, clearly viewing such contact as legitimizing his position.²⁴¹ One individual in Kinshasa noted, “Njabu now has power due to the gold he controls and [the presence of] AngloGold Ashanti.  This is his ace and he will use it to get power in Kinshasa.”²⁴²  Such intentions were further clarified in the April 27, 2005 e-mail correspondence from AngloGold Ashanti to Human Rights Watch, where the company stated that the funds they paid were to be used for FNI “meetings with Government and other political organizations” in Kinshasa.²⁴³  At local level the contact with AngloGold Ashanti was also seen as useful for the FNI. One worker in Mongbwalu summed up the situation by saying “Ashanti will give dignity to the FNI.”²⁴⁴  When Njabu returned to Mongbwalu in February 2004 another local analyst concluded he had made the move to ensure he was the key interlocutor with the company adding, “this will become Njabu’s power base.”²⁴⁵  For a senator in Kinshasa the relationship between such a powerful multinational and the FNI was likely to strengthen the armed group politically and was just plain “dangerous.”²⁴⁶ 

AngloGold Ashanti View of Contacts with the FNI

In a December 7, 2004 letter to Human Rights Watch, AngloGold Ashanti wrote that AGK, its joint venture with OKIMO, had “no working or other relationship with FNI.”²⁴⁷ This position appeared to contradict information elsewhere in the same letter concerning frequent contacts between AGK representatives and FNI leaders, contacts that in effect made it possible for AGK to begin work in Mongbwalu. The letter stated that AGK officials met in late 2003 with F. Ndgabu (sic), the president of FNI, in Kinshasa to discuss their wish to visit Mongbwalu to assess possibilities for starting work there. According to the letter, the FNI president “identified with AGK intentions and wrote his representatives in Bunia and Mongbwalu indicating his support for the commencement of work by AGK.”  The letter said also that AGK officials met with the FNI in March, May, July, and September 2004 so that AGK could outline its work program.

In its April 27, 2005 e-mail communication to Human Rights Watch, AngloGold Ashanti stated, “It is not the policy or practice of this company to seek to establish continuous, working relationships with militia groups in conflict zones.”  In the same communication the company admitted there had been contact between the company’s “management and the FNI” but added these contacts had been “unavoidable” and in the cases where it had occurred the company had “attempted to keep the contact to a minimum and have ensured that the meetings and their outcomes are communicated with all interested parties.”

Human Rights Watch has obtained materials and witness testimony reflecting the frequent contact between AngloGold Ashanti and senior FNI leaders including meetings held, written permission granted, and payments made to FNI representatives.²⁴⁸  This information casts serious doubts on the claim that no working or other relationship existed between the company, its joint venture partner AGK, and the FNI armed group and that such contact was ‘unavoidable’ as suggested by AngloGold Ashanti’s December 7, 2004 letter and its April 27, 2005 e-mail correspondence to Human Rights Watch.  In light of the circumstances on the ground, Human Rights Watch believes it is unlikely that AngloGold Ashanti would have been able to work in Mongbwalu without such a relationship with an armed group who effectively controlled access to the mining site including all road and airport access and who militarily controlled the town and surrounding areas.  This reality was made clear by Njabu himself when he told Human Rights Watch, “I am the boss of Mongbwalu.  If I want to chase [AngloGold Ashanti] away then I will.”²⁴⁹

The AngloGold Ashanti December 7, 2004 letter said that AGK’s decision to begin work at Mongbwalu was “founded on its critical assessment of the security situation and its belief that the population appears well-disposed towards exploration and mining operations in the area.”  The company’s decision to restart activities in the Mongbwalu gold mining area in October 2003 came only weeks after the FNI’s attacks in villages just 30 kilometers to the east of Mongbwalu where scores of civilians were killed, including hospital patients, women and children and where thousands of others were forced to flee (see above).

By instructions given to combatants in its militia, by public appearances in the company of AGK representatives, and by instructions to local residents at a public meeting, all detailed above, the FNI leaders provided the assurances needed by AGK both concerning security in general and concerning the attitude of the population.

In its December 7, 2004 letter to Human Rights Watch, AngloGold Ashanti wrote that “steps have been taken to ensure that human rights will be upheld at all times” and that AGK will “ensure that dealings with local and other organizations, including the discharge of social responsibilities, are carried out in accordance with criteria which comply with reasonable standards of good governance.”  The company stated it had given “consumables and supplies” to the local hospital and school, had replaced the pump at the hospital, and carried out minor repairs to roads, as described in the same letter.  These benefits were granted to local authorities in Mongbwalu who were appointed by, or depended on, the FNI for their authority. But giving in an environment like Mongbwalu is not politically neutral and may have contributed to increased prestige for the FNI.  The dynamics of how the FNI wished to capitalize on the presence of AngloGold Ashanti in Mongbwalu was explained to a Human Rights Watch researcher by FNI Commander Pichou,

We agreed with [AngloGold] Ashanti that all complaints from the local population against the company would be organized via the FNI.  We would give these complaints to Ashanti.  We also stated we wanted to organize a structure, like an NGO, to sort out development issues in Mongbwalu….They were happy for the FNI to create an NGO that Ashanti would then finance.  We even have minutes of these meetings at the FNI office in Mongbwalu.²⁵⁰

Failure to Respect Human Rights, International Norms and Business Standards

Congo is at a critical phase in its transition to the rule of law and needs investment by business corporations to help generate revenue, to repair a shattered infrastructure, and revitalize the economy.  Such business involvement needs to support economic and political development, not work against it.  In an environment of continued conflict, as in northeastern DRC, multinational corporations need to ensure that their activities do not in any way support directly or indirectly armed groups responsible for widespread human rights abuses.  

Although states have primary responsibility for promoting and ensuring respect for human rights, business corporations also carry a number of responsibilities, as is increasingly recognized by international law and norms.  In August 2003 a group of U.N. experts adopted the Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, thereby signaling the growing consensus for standards on corporate responsibility.   The norms are based on a wide range of recognized international instruments including the Universal Declaration of Human Rights, international conventions such as those on torture, genocide, slavery, and rights of the child, the Geneva Conventions and the Rome Statute of the International Criminal Court amongst others.  These U.N. norms help to clarify the international legal framework for obligationson companies in relation to human rights. Specifically they set out that companies have the “obligation to promote, secure the fulfillment of, respect, ensure respect of, and protect human rights recognized in international as well as national law.”²⁵⁷  They further add that companies “shall not engage in nor benefit from war crimes and crimes against humanity” nor “torture, forced disappearances, forced or compulsory labour” as defined by international law.²⁵⁸  It does not appear that AngloGold Ashanti upheld these obligations in its activities in Mongbwalu.  Through the establishment of a mutually beneficial relationship with an armed group responsible for war crimes and crimes against humanity, AngloGold Ashanti failed to uphold its obligations to secure respect for human rights.

AngloGold Ashanti’s own business principles say it strives to ensure that “[host] communities are better off for AngloGold Ashanti’s having been there” and committing itself to seeking “mutually beneficial, ethical long-term relations with those with whom we do business.”²⁵⁹ AngloGold Ashanti has itself committed to complying with all laws, regulations, standards and international conventions applying to its business in the area of protection for human rights including the Universal Declaration of Human Rights, the Fundamental Rights Convention of the International Labour Organization (ILO), the principles and values referred to in the United National Global Compact²⁶⁰ and the Organization for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises in its global operations.²⁶¹  In September 2002 AngloGold signed an important agreement with the 20-million strong International Federation of Chemical, Energy, Mine and General Workers' Unions (ICEM), to promote and respect human and trade union rights, health and safety, environmental protection and the promotion of good relationships with local mining communities in all their operations worldwide.²⁶²   AngloGold Ashanti’s own business principles further state that AngloGold Ashanti will promote the application of its principles to “those with whom it does business” and that acceptance of these principles is an “important factor in our decision to enter into and remain in such relationships.”²⁶³

AngloGold Ashanti failed in its operations in Mongbwalu to uphold its own business principles, as detailed in this report.  The company did not abide by its own internal standards on promoting its business principles to those with whom it does business when deciding whether to enter into a relationship with the FNI armed group.  Throughout its research, Human Rights Watch was unable to identify effective steps taken by the company to ensure human rights were respected in Mongbwalu, a context of significant vulnerability for local civilians and ongoing conflict.  As a multinational company with considerable influence, Human Rights Watch believes that AngloGold Ashanti should have exercised its leverage to pursue local actors to respect human rights and should have conditioned its gold exploration activities on such commitments.

As described earlier, in an annex to their October 2002 report, the U.N. panel of experts detailed concerns about compliance with the OECD Multinational Guidelines by eighty-five multinational companies operating in the DRC including Ashanti Goldfields (the predecessor to AngloGold Ashanti).²⁶⁴  The OECD Guidelines are recommendations addressed directly to companies setting down ‘shared expectations for business conduct’.  They are the first international instrument on corporate social responsibility to provide a government-supported (though voluntary) mechanism for monitoring and influencing corporate behavior. The guidelines provide standards of conduct for all key aspects of company operations including respect for human rights and sustainable development amongst others that are to be observed wherever a company operates.²⁶⁵  In relation to the U.N. panel’s report of 2002, Ashanti Goldfields denied any contravention of the OECD Guidelines in a one-page response to the panel in early 2003.²⁶⁶ No further investigations were conducted and in their final report the panel determined that all issues with Ashanti Goldfields and forty-one other companies had been resolved.²⁶⁷  Questions need to be raised however about AngloGold Ashanti’s compliance with the OECD Guidelines in their activities in Mongbwalu since 2003. AngloGold Ashanti’s relationship with and the support its has provided to the FNI, an armed group responsible for widespread human rights abuses, appear to be in contravention of the OECD Guidelines in relation to respect for human rights.

Many corporations involved in the extractive industry have agreed to a set of Voluntary Principles on Security and Human Rights.²⁶⁸ AngloGold Ashanti has not yet subscribed to the code, but these principles provide guidelines that could have been useful to it in deciding when and under what circumstances to start operations in Mongbwalu.  The code asks corporations: