Report No. 40746 - ZR Investigation Report DEMOCRATIC REPUBLIC OF CONGO: Transitional Support for Economic Recovery Grant (TSERO) (IDA Grant No. H 1920-DRC) and Emergency Economic and Social Reunification Support Project (EESRSP) (Credit No. 3824-DRC and Grant No. H 064-DRC) August 31, 2007 About the Panel The Inspection Panel was created in September 1993 by the Board of Executive Directors of the World Bank to serve as an independent mechanism to ensure accountability in Bank operations with respect to its policies and procedures. The Inspection Panel is an instrument for groups of two or more private citizens who believe that they or their interests have been or could be harmed by Bank-financed activities to present their concerns through a Request for Inspection. In short, the Panel provides a link between the Bank and the people who are likely to be affected by the projects it finances. Members of the Panel are selected “on the basis of their ability to deal thoroughly and fairly with the request brought to them, their integrity and their independence from the Bank’s Management, and their exposure to developmental issues and to living conditions in developing countries.”1 The three-member Panel is empowered, subject to Board approval, to investigate problems that are alleged to have arisen as a result of the Bank having ignored its own operating policies and procedures. Processing Requests After the Panel receives a Request for Inspection it is processed as follows: • The Panel decides whether the Request is prima facie not barred from Panel consideration. • The Panel registers the Request—a purely administrative procedure. • The Panel sends the Request to Bank Management, which has 21 working days to respond to the allegations of the Requesters. • The Panel then conducts a short 21 working-day assessment to determine the eligibility of the Requesters and the Request. • If the Panel recommends an investigation, and the Board approves it, the Panel undertakes a full investigation, which is not time-bound. • If the Panel does not recommend an investigation, the Board of Executive Directors may still instruct the Panel to conduct an investigation if warranted. • Three days after the Board decides on whether or not an investigation should be carried out, the Panel’s Report (including the Request for Inspection and Management’s Response) is publicly available through the Panel’s website and Secretariat, the Bank’s Info Shop and the respective Bank Country Office. • When the Panel completes an investigation, it sends its findings and conclusions on the matters alleged in the Request for Inspection to the Board as well as to Bank Management. • The Bank Management then has six weeks to submit its recommendations to the Board on what actions the Bank would take in response to the Panel’s findings and conclusions. • The Board then takes the final decision on what should be done based on the Panel's findings and the Bank Management's recommendations. • Three days after the Board’s decision, the Panel’s Report and Management’s Recommendation are publicly available through the Panel’s website and Secretariat, the Bank’s Project website, the Bank’s Info Shop and the respective Bank Country Office. 1 IBRD Resolution No. 93-10; IDA Resolution No. 93-6. i Acknowledgments The preparation of this Report would not have been possible without the support and valuable contributions of many people and organizations. The Panel wishes to thank the Requesters and the communities who met with the Panel in the Project areas. The Panel especially expresses its appreciation to the representatives of the Requesters for arranging visits with affected people and for showing the Panel areas of concern to them. The Panel also wishes to thank NGOs and other people and organizations with whom the Panel met. The Panel expresses its appreciation to the many national and local Government officials in DRC with whom the Panel met. They provided valuable insights and information. The Panel is also grateful to the Executive Director’s office for DRC for their assistance. The Panel also wishes to extend its gratitude to World Bank Staff in Washington D.C. and in the Kinshasa office. The Panel wishes to thank Bank Management and Staff for their assistance in obtaining documents, providing the Panel with information, responding promptly to written requests, and assisting with logistical arrangements. The Panel is grateful for the expert advice provided by Mitsuo Ichikawa, Ralph Schmidt, and Paul Michael Taylor. The Panel also wishes to thank all the distinguished experts with whom the Panel met in DRC. The Panel appreciates the professionalism exhibited by them at all times. Finally, the Panel wishes to convey its gratitude and appreciation to the members of its Secretariat for their resourceful handling of this investigation, particularly to Eduardo Abbott, Peter Lallas, Dilek Barlas, Anna Herken, Serge Selwan and Tatiana Tassoni for their expertise and professional assistance. ii Table of Contents About the Panel i Acknowledgements ii Table of Content iii Abbreviations and Acronyms vii Executive Summary ix Chapter 1 – Introduction 1 A. Forests and Post-Conflict Situation 1 B. The World Bank Projects 2 1. Initial Activities and Strategy 2 2. Emergency Economic and Social Reunification Support Project (EESRSP) 5 3. Transitional Support for Economic Recovery Grant Operation (TSERO) 9 4. Links with Other World Bank Projects and Other Donor Activities 11 C. Events leading to the Investigation 13 1. Request for Inspection 14 2. Management Response 16 3. Eligibility of the Request 19 4. Investigation 19 5. Bank Operational Policies and Procedures Applicable to the Project 20 Chapter 2 – Forests, Indigenous Peoples and Bank Engagement 21 A. Context: Social, Economic and Environmental 21 1. Forests and Sustainable Development 21 2. Industrial and Other Forms of Forestry and Logging 25 B. Ethnographic Context: the Pygmy Peoples and other Groups 31 C. Bank Engagement and Continuity 37 D. Focus on Concessions and Potential Revenues 38 E. Legal Framework with Regard to Forests 41 1. General Legal Framework Related to Forests 42 2. World Bank Role in the Development of the Legal Framework 43 3. Moratorium on New Concessions (May 2002) 43 4. Forest Code (August 2002) 44 5. Implementing Decrees 49 6. General Conclusions 49 F. Institutional Capacity, Governance and Concerns of the People 50 iii Chapter 3 – Planning for Forest Protection and Use: Social Issues 52 A. Indigenous Peoples 52 1. Presence of Pygmy People in Project Area 54 2. Pygmy People as Indigenous People under Bank Policy 57 3. Failure to Develop an Indigenous Peoples Development Plan (IPDP) 58 4. Importance of an IPDP for the Pygmy People 59 (i) Baseline Data 60 (ii) The Legal Framework, Customary Rights, and Institutional Capacity 62 (iii) Sources of Income and Livelihood 64 (iv) Avoiding Adverse Impacts 66 (v) Strategies for Local Participation 67 B. Cultural Property 69 C. Poverty Reduction 71 D. Lessons from Cameroon 75 E. Information Disclosure and Consultation 77 1. Efforts at Outreach and Information Disclosure 77 2. Special Issues relating to Consultation with Pygmy People 79 F. Concerns Presented to the Panel during its Investigation 80 Chapter 4 – Planning for Forest Protection and Use: Environmental Issues 82 A. Environmental Assessment 82 1. Classification and Preparation of an EA 83 (i) The Pilot Forest Zoning Plan (PFZP) 83 (ii) The Logging Concession Conversion Review Process 85 (iii) Policy and Institutional Strengthening, Technical Assistance 86 2. Delay in Release of the EA 88 B. Forests 89 C. Obligations Under International Environmental Treaties and Agreements 93 D. Natural Habitat 95 E. Nature and Impacts of the Choice of DPL for the TSERO 96 1. Choice of Development Policy Loan for TSERO 96 2. Normative Framework of OP 8.60 – Environmental Issues 97 3. Potential Environmental Effects of DPLs 98 4. DPLs with a Component on Forests – Experience and Practice 100 F. Application of OP 8.60 to the TSERO 103 Chapter 5 – Project Implementation 105 A. Post-Moratorium Concessions and “Swaps” 105 1. Reports of “By-Passing” of the Moratorium 105 iv 2. Bank Documentation and Supervision 107 B. Concession Conversion Process - - How it Works 110 1. Presidential Decree of October 2005 (No. 05/116) 110 2. The Implementation of the Process so far 113 C. Problems and Concerns relating to the Conversion Process 116 1. Treatment of Existing Concessions 116 2. Time Constraints 117 3. Race to Extract and Swap for Higher Value Forest Areas 119 4. Lack of Meaningful Participation by Pygmy Peoples and Local Communities 121 5. Asymmetrical Rights to Contest the Results of the Process 123 6. Duration of the Moratorium 123 7. Additional Observations 124 D. Zoning and Land Use 125 E. Status of Adoption of Implementing Decrees 127 F. Concluding Observations 129 Annexes Annex 1: Table of Findings Annex 2: Note on Ethnographic Background of the Pygmy People in DRC Annex 3: List of Applications for Concession Conversion Annex 4: Biographies Boxes Box 1.1: The Forest Carbon Partnership Facility (FCPF) Box 2.1: Recent Developments – Post-Conflict Box 2.2: “Apakumandura” – Father of Forest Box 2.3: Conservation Concessions Box 2.4: Community Forests – Lessons from Cameroon. Box 3.1: In Their Own Words – Pygmy People at Different Locations Box 3.2: In Their Own Words – Local Civil Society Tables Table 1.1: Summary of Relevant World Bank Lending Operations Table 2.1: Rough Estimate of Current Consumption of Some Products for