Screen Shot 2018-06-12 at 5.33.32 PMBy Emery Mukendi Wafwana, Emery Mukendi Wafwana & Associates Law Firm


The Government of the Democratic Republic of Congo (DRC) commenced the review process in respect of its Act No. 007/2002 of July 11, 2002 on Mining Code (Mining Code) in 2012. The process eventually culminated in the promulgation by the President of the Republic of the Act Amending the Mining Code (Amending Act).

As promulgated, the Amending Act contains provisions which considerably affect the fiscal, customs and exchange regimes of the Mining Code and a number of critical provisions for the protection of existing mining projects, in particular, Article 276 related to the Guarantee of Stability (Legal Guarantee of Stability).

Guarantee of Stability
The Mining Code was promulgated in 2002 to meet the needs of relaunching the mining sector, which was dormant. It put in place a legal mechanism that would attract foreign private investments in a sector which was for a long time managed by the state. Hence the establishment of the Legal Guarantee of Stability in the Mining Code is important for both the government and promoters of mining projects in the DRC. It is the bedrock of the national mining policy in that it stimulates the mobilisation of private investment in the mining sector.

The legislation affirms: “The Congolese State guarantees to the holders of mining rights the existence of a good investment climate expressed by its firm commitment to the respect of the rights granted by the Code and the fulfilment of its duties subject to such rights.”

However, between 2002 and 2014, the relaunch of the mining sector did not yield substantial revenues to the state for its social and economic development. Neither did it meet the various expectations based on the Mining Code.

Amending Act
The Amending Act has significantly reduced the scope of rights covered under the Legal Guarantee of Stability by limiting it only to the fiscal, customs and exchange regimes, and for period of five years as opposed to the period of 10 years as from the entry into force of the coming legislative amendments. As immediate enforcement of the Amending Act does not imply the implementation being backdated to July 11, 2002, especially because the legislator did not explicitly stipulate it in the Act, the Amending Act provides for the future and does not harm acquired rights legally guaranteed by the state.

Thenceforth, it is clear that the Amending Act cannot be regarded as a prejudice to the interests of the beneficiaries of the Legal Guarantee of Stability for the mere fact of its promulgation and publication, as long as it has not been applied effectively. In this case, beneficiaries of the Legal Guarantee of Stability cannot be legally justified to request any compensation only if at the time of implementing the Amending Act, public services, administrations and civil servants tasked with implementing the Act refuse to grant them the full benefit of this guarantee, especially regarding not only its scope but also its period of intangibility. Consequently, any litigation against the government based on the mere promulgation and gazetting of the Amending Act before any court or any arbitral entity, could be considered as premature.

However, the government, being under the obligation to implement the provisions of the Amending Act, should comprehensively and unequivocally clarify, in its Mining Regulations to be amended, the scope of the Legal Guarantee of Stability and its effects on existing mining projects, as at the effective date of the Amending Act. The government should further instruct and train the civil servants tasked with implementing the Mining Code and the Amending Act on the best practices of the Code regarding the scope and the effects of the amendment of the Mining Code on the existing mining projects which are under the regime of the Mining Code. This would contribute to the good conduct of civil servants whose contrary practices would expose the State to compensatory actions for breach of acquired rights legally guaranteed by the state. This would allow the beneficiaries of the Legal Guarantee of Stability an opportunity to rightfully litigate for wrong or damaging application of the provisions of the Mining Code and its Amending Act.


Screen Shot 2018-03-13 at 1.28.45 PM







T: (+1) 212 922 0040 (New York)

T: (+243) 1 512 4738 (Kinshasa)

Related Articles by Firm
Africa: The effect of Covid-19 and business resilience
Companies worldwide are, or will inevitably be, affected in the short and medium-term by the coronavirus pandemic (Covid-19). Decline in commodity prices due to the falling demand in China, travel restrictions ...
Africa: Boon for investors as Zimbabwe enacts new investment promotion law
On February 7, 2020 the Zimbabwe Government gazetted the long-awaited Zimbabwe Investment and Development Agency Act (Chapter 14;37). The new law comes in against the backdrop of promoting the ease of doing business in the country ...
Africa: Community issues and resource nationalism adding pressure on the mining industry
As if mining by its very nature is not difficult enough from a technical, financial, environmental and labour point of view ...
Opening the money taps into Africa
Akinwumi Adesina is not a name most people in Africa would recognise, yet it belongs to a man who is, arguably, doing the most to haul the continent out of a rut of underdevelopment and improve the lives of its ...
Coal-driven power train is running out of steam
The African Development Bank that it is making a surprise policy turn away from fossil-fuel investment and ploughing a new renewable energy path ...
Sun, wind and water stir up Africa’s energy mix
Obstacles to faster development of green energy abound everywhere, but the trend is clear and the momentum unstoppable.
Africa: Guinea emerging from the shadows
Recent reports from three respected international organisations sketch a relatively upbeat picture of economic prospects in the west African state of Guinea ...
AFRICA: How Nigeria is going local
Promoting “indigenisation” in the Nigerian economy was the subject of a recent Lex Africa seminar, which asked how foreign investors were forging partnerships with local players, using local content and local manufacturing capacity and transferring valuable work skills ...
Local content and participation in Ghana’s electricity supply industry
In line with the national push for a more structured approach to increasing local content and participation, the Regulations came into force on December 22, 2017 ...
One small step for Africa
On April 2 the Gambia’s parliament wrote itself into modern African history when it ratified the Africa Continental Free Trade Agreement (AfCFTA) ...
Zimbabwe’s ratification of the WTO Trade Facilitation Agreement
Recently, Zimbabwe, a member of the WTO since 1995, ratified the WTO Trade Facilitation Agreement (TFA) becoming the 139th WTO Member State to ratify this Agreement ...
African competition law developments in 2018 and the outlook for 2019
Africa is sometimes described as the “last frontier” of competition law because many African countries have only recently adopted modern competition laws ...
Blockchain, cryptocurrencies and the law in Uganda
By far the most significant headline-grabbing development in 2017 and 2018 relates to the stunning rise of blockchain ...
Tanzanian government releases Microfinance Bill
In a bid to ensure proper licensing, regulation, monitoring and supervision of microfinance business in Tanzania, the Minister for Finance has issued a draft Bill on Microfinance to be tabled in the National Assembly very soon ...
Ethiopia’s arbitration law challenges
Arbitration is perceived as one of the alternative solutions to congestion in the court system ...
Developments in competition law in Africa
At LEX Africa’s June seminar on developments in competition law in Africa, speakers discussed the increasing trend of governments to try and use competition law as an important part of their industrial policy ...
Zimbabwe holds massive potential for private equity investors
The country’s infrastructure is broken, but there is room for smart investors to capitalise on its rehabilitation.
Mozambique is addressing economic reform in a big way in 2018
Significant strides in Mozambique’s legislation and policies could see a rapid turnaround in the country’s economic situation. In 2016, inflation peaked at 26 percent ...
Increasing importance of African regulatory issues for M&A, trade and investment
It is important to remember that Africa is not a country but consists of 54 sovereign states and a huge diversity of cultures, customs, languages, ethnic groups and religions ...
Related Articles
Related Articles by Jurisdiction
Environmental Authorisations and Licences now publicly accessible in South Africa
Holders of environmental permits and licenses may find their activities and compliance subject to greater public scrutiny.
Sun, wind and water stir up Africa’s energy mix
Obstacles to faster development of green energy abound everywhere, but the trend is clear and the momentum unstoppable.
The long arm of the law in South Africa
Ayesha Dawood of the eponymous Johannesburg based firm, Ayesha Dawood Attorneys, considers the importance of governance and accountability with reference to the Prevention and Combatting of Corrupt Activities Act No. 12 of 2003 (PACCA) and sheds light on ...
Latest Articles