Select Committee on European Scrutiny Twenty-Second Report


13 Breach of Cotonou Agreement by Republic of Guinea

(29544)

7499/08

COM(08) 138

Draft Council Decision amending Decision 2005/321/EC concluding the consultation procedure with the Republic of Guinea under Article 96 of the Cotonou Agreement

Legal baseArticles 9 and 96 of the Cotonou Agreement; QMV
DepartmentForeign and Commonwealth Office
Basis of considerationMinister's letter of 25 April 2008
Previous Committee ReportHC 16-xx (2007-08), chapter 12 (2 April 2008); also see (26227) 16041/04: HC 38-iv (2004-05), chapter 13 (19 January 2005)
To be discussed in Council7 or 14 April 2008
Committee's assessmentPolitically important
Committee's decisionCleared (decision reported on 2 April 2008); but further information now requested

Background

13.1 The Cotonou Agreement[37] provides the framework for relations between the EU and 77 countries of Africa, the Caribbean and the Pacific (ACP). It is based on five interdependent pillars:

—  a comprehensive political dimension;[38]

—  participatory approaches;

—  a strengthened focus on poverty reduction;

—  a new framework for economic and trade cooperation; and

—  a reform of financial cooperation.

13.2 Article 96 allows for consultations between the EU and an ACP state if the ACP State is considered to be in breach of an "essential element" of the agreement (respect for human rights and fundamental freedoms, as set out in Article 9 of the Agreement). If no remedy is found, "appropriate measures" may be taken including, as a last resort, total or partial suspension of the Agreement.

13.3 On 30 March 2004 the European Union decided to open consultations with Guinea under Article 96 of the Cotonou Agreement. This decision (which our predecessors cleared on 17 December 2003) was taken because of the deterioration of democracy and the rule of law, failure to respect human rights and fundamental freedoms and the lack of good economic governance, culminating in the December 2003 presidential elections, held in contentious conditions and without real electoral competition — so much so that the regional African body, ECOWAS, refused to monitor the elections in order to avoid giving them legitimacy.

Council Decision 2005/321/EC

13.4 This Council Decision contained a letter from the EU to the Government of Guinea, informing it that Article 96 consultations were now to be concluded and that the measures specified had been adopted as appropriate measures within the meaning of Article 96(2)(c) of the Cotonou Agreement.

13.5 As our predecessors explained, in 2004 the Government of Guinea had made certain undertakings including:

i)  a return to democracy through resumption of dialogue with the traditional opposition and civil society, including revision of the electoral arrangements; and holding local and parliamentary elections based on the new electoral arrangements in June 2005 and June 2007 respectively;

ii)  upholding the Constitution and the law, so guaranteeing respect for human rights and fundamental freedoms, including the rights of political parties to organise, meet, demonstrate and speak in public; launching discussion on a legal framework for liberalisation of the airwaves;

iii)  promoting decentralisation; and

iv)  enhancing macroeconomic management and implementing sectoral reforms.

13.6 Late in 2004, a joint implementation evaluation by the Presidency, Commission and local Member States' representatives found that the Guinean authorities had:

i)  shown willingness to resume political dialogue with political representatives with a view to revising electoral arrangements;

ii)  confirmed the decision to organise local elections in June 2005, step up decentralisation and organise parliamentary elections within the time limits set by the Constitution, i.e. in June 2007;

iii)  announced a timetable for liberalisation of the airwaves; and

iv)  confirmed measures, with a timetable for implementation, in the field of macroeconomic management and sectoral reform.

13.7 However, as the then Minister for Europe at the Foreign and Commonwealth Office (Mr Denis MacShane) explained, most of these undertakings were to be implemented, and needed to be monitored, over an extended period. A number of points continued to give rise to serious concern: despite the willingness expressed by the government and the opposition to engage in dialogue, the government had a poor track record, and resumption of dialogue was proving difficult; this could endanger compliance with the undertakings to hold local and parliamentary elections on time. The measures proposed under Article 96(2)(c) of the Cotonou Agreement accordingly aimed at underpinning the process in recognition of progress made, motivating the Government to consolidate this progress and, above all, speeding up performance of the undertakings concerning the restoration of democracy. An enhanced political dialogue would be conducted with the Guinean Government over a 36-month monitoring period in order to ensure that it continued on the path mapped out towards democracy and the rule of law and pursued and consolidated its efforts in the field of human rights and fundamental freedoms. This dialogue would involve the EU Presidency and the European Commission and bi-annual evaluations would be carried out over the monitoring period.

13.8 In view of the above, and in accordance with Articles 9 and 96 of the Cotonou Agreement, the Commission proposed that the Council conclude the consultations with Guinea and adopt the Decision. The 31 January General Affairs and External Relations Council adopted the letter and thereby closed the consultations.

13.9 In clearing the Decision on 19 January 2005, the then Committee noted that, while they did not judge the opening of consultations as of sufficient political importance to warrant a substantive report to the House, they considered that their closure, and the beginning of a three-year process that would, in many ways, indicate the practicability of the "conditionality" approach enshrined in the Cotonou process — assistance accompanied by, but not in the absence of, democratic progress — warranted a Report to the House.

13.10 They also asked the Minister to inform the Committee of the outcome of each of the periodic evaluations and to give his view on it.[39]

The new Council Decision

13.11 In his Explanatory Memorandum of 26 March 2008 the Minister for Europe at the Foreign and Commonwealth Office (Mr Jim Murphy) said that this proposed amendment would extend the Article 96 monitoring period for a further 12 months. He described the proposal as "a safety mechanism in order to prevent a potential legal void if the Council decides to extend the Guinea monitoring period at short notice". He noted that the African, Caribbean and Pacific (ACP) Working Group in Brussels on 1 April would make a recommendation "taking into consideration developments on the ground up until 31 March, a report from the joint Commission/Presidency mission to Conakry and views from partners". He described the Commission's proposal as "a sensible precaution for now", and said that he could agree to maintain article 96 monitoring for a further 12 months; if, he continued, "further discussions planned for 1 April result in a recommendation that Guinea has made sufficient progress to proceed to the next stage (Article 8)", he would "update" the Committee "as necessary".

13.12 We had no wish to hold up the proceedings, and therefore cleared the proposed amendment.

13.13 However, we found the Minister's Explanatory Memorandum unusually thin and disappointing. It made no mention of the Commission's own Explanatory Memorandum attached to the draft amendment, in which they made clear that the political process in the intervening years had been decidedly mixed, with flawed local elections in December 2007; the authorisation of private radio stations in August 2006, and a consensus at the end of the year on a framework for parliamentary elections (which seemed to have led the EU to decide to make available envelope A of the 9th EDF, some €85.8 million); then more setbacks in 2007, involving strikes, the violent repression of peaceful demonstrations (with between 138 and 183 dead and over 1,500 wounded) and the postponement of the June 2007 parliamentary elections several times, with no official date yet fixed. We found it odd, therefore, to see the reason for this extension portrayed as to prevent a legal void; and hard to see a basis upon which a recommendation might be made "that Guinea has made sufficient progress to proceed to the next stage (Article 8)" — whatever that next stage was, about which the Minister said nothing.

13.14 We also noted that we had heard nothing from him or his predecessors about developments since January 2005. We asked the Minister to explain the basis upon which the decision was made to release EDF9 funds in 2006 and whether this required a decision by the Council.[40]

The Minister's letter

13.15 In his letter of 25 April 2008, the Minister for Europe responds as follows:

ARTICLE 8 OF THE COTONOU AGREEMENT

"Your Committee wondered about the transfer to Article 8 dialogue following completion of the review period of procedures under Article 96. Political dialogue under Article 8 of the Cotonou Agreement is the normal state of relations between the EU and 77 countries of Africa, the Caribbean and the Pacific (ACP). If the political situation in an ACP country deteriorates, dialogue between the two parties, EU and the ACP under Article 8 is intensified, with the aim of resolving the situation and avoiding initiation of Article 96 consultations. Even when Article 96 consultations do take place, political dialogue under Article 8 continues. It is an ongoing process to assist in normalising the relationship of a country. When the EU decides to end Article 96 consultations, intensified political dialogue under Article 8 continues to monitor progress on the commitments made before the normal state of affairs/dialogue between the EU and the ACP is resumed."

JUSTIFICATION FOR THE MEASURES

"We agree that the justification for the amendment to the Council Decision to extend the review period of procedures under Article 96 is that the Republic of Guinea has not yet made sufficient progress on its undertakings. While there is evidence to show that Guinea has made significant progress in many of the areas, notably the improved open political dialogue since mid-2006, the creation of the Independent National Electoral Committee, and liberalisation of the airwaves, the decision to extend the period of review for a further 12 months is necessary given the delay in setting a date for the parliamentary elections, a key requirement of the original Council Decision. We have sympathy with the view expressed in the Commission's Explanatory Memorandum that holding free and transparent parliamentary elections should ideally mark the end of the Article 96 procedure. This was recently the case in Togo. We also share the Commission's belief that the elections could be held within the extended period of review. In EU discussions we have therefore supported the proposal for an extension of the Article 96 review period for a further 12 months.

"Your Committee asked why I described the Commission's proposal as 'a sensible precaution for now'. This was in part a reference to the need to maintain a review period while we await progress on an election date, but also referred to the need to maintain the EU legal basis for discussions. The Commission proposed the Council Decision to extend Article 96 for a further 12 months in early March, before the release and consideration of the latest joint follow-up mission report. If the EU had chosen not to extend Article 96 then no further action would have been needed. The Council Decision and application of procedures under Article 96 would have expired. However, if — as the EU subsequently decided — we had wanted to extend Article 96 then we needed a new legislative instrument in place on good time: the Council Decision. Had we not adopted this Council Decision before 14 April 2008, then there would have been a legal and political void — a gap in the ongoing procedures under Article 96. This could have caused misunderstandings about the EU's relations with the Republic of Guinea."

UPDATE ON SITUATION IN GUINEA

"I apologise that neither my predecessors nor I have written to the Committee informing you of the outcome of each of the periodic evaluations as requested in the conclusion of the Committee's Fourth Report of January 2005. Four joint follow­up missions by the Council and the Commission have visited the Republic of Guinea in May 2005, February 2006, May 2007 and March 2008. These missions met with senior members of the Guinean Government including the Prime Minister, and with key representatives from civil society and international organisations (International Monetary Fund, UN Development Programme), and EU Heads of Missions. The EU Presidency Special Representative for Mano River Union also visited Guinea regularly over this period. Their reports were discussed regularly at the EU ACP and Africa Working Groups.

"In 2005, preparations for the December local elections were slow, but there was some progress evident on macro-economic reform. Legislation liberalising the airwaves was given presidential approval in August. While the 18 December local elections were generally peaceful and, with respect to previous elections in Guinea, a further step towards democracy and transparency, they were marked by shortcomings and irregularities. This led to a loss of confidence on the part of the opposition and political dialogue was suspended.

"By early 2006 little practical progress had been made in the reform agenda. The process had stalled and resumption of the National Dialogue looked unlikely. From mid-2006, increased political dialogue enabled a consensus to be reached on the establishment of an electoral framework for free and transparent parliamentary elections. This led to signature of the 9th EDF in December 2006. However, the deterioration of living conditions provoked two general strikes during the year.

"In January and February 2007, frustration from a combination of declining living standards; corrupt, bad governance and the autocratic actions of the President led to a popular uprising in Guinea which saw several weeks of violence and over 100 people killed. When calm was restored the respected diplomat Lansana Kouyate was named Prime Minister. The situation in Guinea improved as Kouyate worked to reform public administration, with a plan centred on national unity, political dialogue, restoration of state authority and good governance. In November 2007 President Conté signed a decree creating an independent electoral commission (CENI). The IMF agreement in December 2007 reflected that Guinea had made some progress on the macro-economic side.

"Measures carried out by the Guinean authorities in 2008 are proceeding in a generally positive direction, particularly in terms of open political dialogue and macro-economic policies. While there is political will to organise free and fair parliamentary elections, arrangements remain to be finalised, including the fixing of a date, one of the main undertakings given by the Guinean Government under Article 96 consultations. The review period for procedures under Article 96 of the Cotonou Agreement was therefore extended for a further 12 months on 14 April."

RELEASE OF EDF 9 FUNDS

"Your Committee asked upon which basis the decision was made to release EDF 9 funds in 2006, and whether this was a matter requiring a decision by the Council. Article 3 of the Internal Agreement between the Member States on measures to be taken and procedures to be followed for the implementation of the ACP-EC Partnership Agreement (OJ 317, 15.12.2000) sets out the rules for Article 96 of the Cotonou Agreement. The annex to the Internal Agreement states that decisions on partial suspension of Cotonou are taken by Qualified Majority Voting and that such measures last 'for the period indicated in the Council Decision'. The letter attached to the Council Decision of 2005 (2005/321/EC) explained that EDF 9 would be signed and implemented 'once sufficient progress had been noted' in the undertakings Guinea made under Article 96 consultations.

"Sufficient progress was noted at the ACP Working Party meetings of 24 November 2006 and 1 December 2006, in the light of three key reports (EU Heads of Mission report of 23 October 2006, Commissioner Michel's report of his visit to Guinea of 25 October 2006, and the report by the EU Presidency Special Representative for the Mano River Union of 21 November 2006), all of which concluded that the conditions for implementation of the 9th EDF had been met. The ACP Working Party made a recommendation on 1 December 2006 that the Council approve the release of EDF 9 funds to the Republic of Guinea, which it did in a declaration dated 11 December 2006. As a Council Decision had already been taken, there was no need for another Decision, just a Council declaration confirming release of the funds once sufficient progress had been noted."

Conclusion

13.16 We are grateful to the Minister for his comprehensive response.

13.17 The Commission itself describes the Cotonou Agreement as "a global and exemplary agreement", within which the political dimension, and particularly respect for human rights and fundamental freedoms, plainly has a central position. We hope that the next 12 months will see the Guinea authorities finally arrange free and fair elections, and thus enable the political dialogue between them and the EU to return to a more normal basis. We look to him to ensure that he informs us of the outcome of any further evaluations.

Annex: The political dimension of the Cotonou Agreement

"EMPHASIS ON THE KEY ROLE OF POLITICAL DIALOGUE

Dialogue should allow ACP and EC to address all issues of mutual concern and to ensure consistency and increased impact of development cooperation.

It will be conducted in a flexible manner: within and outside the institutional framework, at national, regional or ACP level.

PEACE-BUILDING POLICIES, CONFLICT PREVENTION AND RESOLUTION

Dialogue and cooperation strategies will address peace-building policies and conflict prevention. The partnership will focus in particular on regional initiatives and the strengthening of local capacities.

ESSENTIAL ELEMENTS

Respect for human rights, democratic principles and the rule of law are essential elements of the partnership.

A new procedure has been drawn up to deal with violations. It puts more emphasis on the responsibility of the State concerned and allows for greater flexibility in the consultation process. In cases of special urgency — serious violations of one of the essential elements — measures will be taken immediately and the other party notified.

GOOD GOVERNANCE

Commitment to good governance as a fundamental and positive element of the partnership, a subject for regular dialogue and an area for active Community support.

The EC and the ACP have also agreed on a new specific procedure to be launched in serious cases of corruption. This is a real innovation, both in the EC-ACP context and in international relations. It is not confined to EC activities. It will be applied in cases of corruption involving EDF money and more widely, in any country where the EC is financially involved and where corruption constitutes an obstacle to development. This is a very important aspect, as public finance constitutes a whole, regardless of the source of finance; corruption involving other sources of financing therefore indirectly affects EDF funding. The EC and the ACP States are together sending a clear and positive signal to European taxpayers and investors, and legitimate beneficiaries of aid."


37   See http://ec.europa.eu/development/geographical/cotonouintro_en.cfm for full information on the Cotonou Agreement.  Back

38   Reproduced at the Annex of this chapter of our Report. Back

39   See headnote: (26227) 16041/04: HC 38-iv (2004-05), chapter 13 (19 January 2005). Back

40   HC 16-xx (2007-08), chapter 12 (2 April 2008). Back


 
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