MINING IN THE DRC: Legal certainty tested by sovereignty

LEGAL BRIEF:

"MINING IN THE DRC: LEGAL CERTAINTY TESTED BY SOVEREIGNTY"

The announcement of a new bill aimed at amending Law No. 007/2002 of July 11, 2002, governing the Mining Code, as amended and supplemented by Law No. 18/001 of March 9, 2018, revives the debate on the legal certainty of investments in the Democratic Republic of the Congo (DRC). Introduced to the National Assembly by Member of Parliament Serge Chembo Nkonde and submitted to the Government for review, this text modifies over forty articles.

This contribution analyzes the confrontation between the theory of permanent state sovereignty over natural resources and the theory of contractual predictability defended by economic operators.

I. The Legal Foundations of the Reform: The Consecration of Fiscal Sovereignty

The Congolese legislator legitimizes this approach by relying on well-established constitutional principles and concepts of international economic law.

• The Principle of Permanent Sovereignty over Natural Resources: Anchored in United Nations General Assembly Resolution 1803 (XVII) and reaffirmed in Article 9 of the Constitution of the DRC, this principle postulates that the State possesses an inalienable right to adapt its legal framework to maximize the well-being of its population.
• Rebalancing the Rent During a Super-Cycle: The State justifies the revision by pointing to a financial asymmetry. In the first half of 2026, the DRC exported a record volume of 1,724,217 metric tons of copper (+4.5% compared to H1 2025). The Government believes that the current fiscal architecture—despite introducing a 10% royalty on strategic substances such as cobalt—does not equitably capture the value generated by the explosion in technological demand.
• Institutional Sanctuarization: The proposed bill aims to provide a rigid legal anchor for pivotal structures: the Regulatory and Control Authority for Strategic Mineral Substance Markets (ARECOMS) and the Mining Fund for Future Generations (FOMIN), in order to lock in the traceability of financial flows.

II. The Position of the Chamber of Mines: The Risks of Breaking the Asymmetry of Trust

In the face of this legislative offensive, the Chamber of Mines of the Federation of Congolese Enterprises (FEC) counters with arguments rooted in legal technique and the economic theory of law.

• An Implicit Violation of the Spirit of Stability: The Chamber of Mines recalls that the 2018 reform had already caused a legal earthquake by unilaterally abolishing the 10-year stability clause from the previous code (Article 276). Initiating a new revision less than ten years later establishes a state of chronic normative instability. This legislative unpredictability breaks the bond of trust with institutional investors.
• The Obsolescing Bargain Model: Conceptualized by Raymond Vernon, this theory applies rigorously here. Once multinationals (such as Glencore, Ivanhoe, CMOC) have injected billions of dollars into non-relocatable fixed capital (such as the Kamoa-Kakula complex), the legal balance of power shifts. The State is then tempted to indirectly expropriate value through over-taxation. The FEC warns that this practice destroys incentives for future exploration (Greenfield projects).
• Opportunity Cost and Regional Competitiveness: The Chamber of Mines highlights the perverse effects of quota regulations, which currently block over 55,000 metric tons of cobalt within the national territory to force local refining. While cobalt exports fell by 6.4% in H1 2026 (to 41,140 metric tons), the FEC contends that fiscal tightening will prompt international capital to redirect toward competing and more stable jurisdictions, such as neighboring Zambia.

The challenge of a legal "pact" must be taken into account. Modern doctrine in African mining law demonstrates that piling up legislative texts does not guarantee an increase in public revenue. The Chamber of Mines and sector experts advocate for a strict evaluation of the enforcement of the 2018 code rather than a complete rewrite. The true challenge for the DRC lies not only in generating regulations, but also and above all in strengthening the capacities of its mining administration to sufficiently audit production costs and curb tax evasion, without disrupting the contractual balance essential to financing the mines of tomorrow.