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Saturday, July 13, 2024

EU VPA, LIBERIAN CONSTITUTION CLASH?

Date:

Analysis by Paul M. Kanneh

In 2013, European Union and Liberia reached a trade agreement, called Voluntary Partnership Agreement (VPA) with the aim to ensure logs being exported are legally sourced. The VPA, like other regulations, is subject to the Liberian constitution and its progressive legal framework. But both instruments are meant to complement each other in ensuring transparency and accountability in the forestry sector so that Liberia can obtain FLEGT Licenses. A FLEGT license confirms that timber is legally sourced and hence facilitates access to EU, US, or Chinese markets.

There are, however, problems with the implementation and enforcement of this legal framework as reported. “Despite the progressive legal framework and monitoring system, none of the Forest Management Concessions (FMCs) that operate today are legal (World Bank, 2019) and communities neighboring these have lost out on an estimated 20 million USD that they should have received, seven times more than they did receive (Forest Trends, 2020)”.

This became clear again when the 2nd Judicial Circuit Court in Grand Bassa County, on 13 January 2022 ordered a defaulting company, Renaissance Group Incorporated (RGI) to designate a buyer for logs the company illegally harvested six kilometers outside of the permitted concession area.  “In this direction, the FDA, as the government regulator of the forest sector, shall be ordered to determine or appraise the monetary value of the logs while the Petitioner (Renaissance Inc.) shall designate a buyer and sell the logs under the supervision of the FDA, all done under the umbrella, strong, and direct supervision of the Court”, the Court said in its final ruling. This ruling is in violation of the VPA.

While the court has ordered the FDA to facilitate the exportation of illegal logs, the VPA finds the export of these logs illegal because the logs were harvested in an area that did not have a forest resource license, the logs were cut outside of the concession area, and the logs were also not captured by the LiberTrace system. The offenses were documented in a report published by local civil society actors, Independent Forest Monitoring Coordination Mechanism (IFM-CM) in October 2021.

But at a contempt hearing on Monday, January 15, 2023, the 2nd Judicial Circuit Court in Upper Buchanan, said the FDA can go ahead to export the logs outside of the LiberTrace system (see court ruling on the contempt proceedings-Renaissance vs. FDA, January 15, 2023).

The Court said its ruling was based on Article 21 (h) of the 1986 constitution of Liberia which says “no person shall be subject to double jeopardy”.  Under such law, a person is prevented from being prosecuted twice for the same crime. Prior to the lawsuit, the management of the Forestry Development Authority (FDA) had fined RGI US$105,000 for harvesting logs outside of concession areas.

Clearly speaking, the FDA aided and abetted the unlawfulness by RGI by imposing a fine instead of revoking the company’s license, penalizing the people involved and confiscating the timber, as mandated by the National Forestry Reform Law of 2006 (NFRL). CHAPTER 6, section 6.1 (Termination of Forest Resources Licenses-b, d & e) says the Authority may terminate Forest Resources Licenses on any of the following grounds: felling of trees not covered by a valid Annual Harvesting Certificate, failure to satisfy, consistent with the terms of a Forest Resources License, any financial obligations to the Government (including payment of taxes, rents, or fees) or to local communities, except when such failure is due to Force Majeure, as the term is defined by Section 6.3 of this Law and for licenses granting exclusive use of Forest Resources in a particular area, abandonment of operations for a period of twelve months or more. With the above options available to the FDA, it chose to impose a fine of only $US105, 000.

Although the Supreme Court’s ruling has to be implemented, there are concerns that such a blatant violation of the National Forestry Reform law and the VPA should not be legally justified with a “double jeopardy” argument.

In addition to harvesting outside of the concession area, RGI is accused of not paying the community in the logging area their dues. An elder of the community, Samuel Gweh has expressed doubts over the company’s willingness to remit community shares of the proceeds from the illegally harvested logs, when allowed to sell the logs. “I want the government to be the one to sell the logs instead of the company because the company standing is not good, and it did not implement all the things it promised to do. But with government, we are certain that we will get some of our benefits, said elder Samuel Gweh.

If the FDA allows the logs to be exported under the current arrangement as mandated by the court, Liberia will be found to have breached the trade agreement it agreed with the European Union in 2013 to ensure logs being exported are legally sourced. “Once the area of the concession doesn’t have forest resource license, that means the logs harvested are illegal and cannot and should not be permitted to enter the Chain of Custody, Jonathan W. Yiah of the Forest Governance Program at SDI said.

It appears that the court’s ruling has not only gained local attention; it has also gained international attention. On January 17, 2023, fourteen international organizations released a statement saying: “The international community will judge the seriousness of Liberia’s stated aim of maintaining forest cover, eliminating illegal timber, and making use of the LiberTrace traceability system on how this case develops”.

It should be noted that the court’s order to export illegally harvested logs comes a year after President George Weah made a plea to the world’s leaders in Glasgow, Scotland for more climate financing opportunities to countries with rich biodiversity and forest cover.  “We who are the richest in terms of forest resources and biodiversity, are the poorest in terms of socio-economic development.  Although we bear the brunt of the impact of climate change, we benefit the least from the existing solutions and financial arrangements currently in place for tackling climate change,” Pres. Weah said.

Although President Weah’s calls for more climate financing was legitimate, Liberia is rated as not doing enough to address forest illegalities as the RGI case again shows. Until forest governance has improved, illegalities are being tackled and communities been paid what they are owed, Liberia cannot be expected to receive much climate finance.

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