8 Breaches of the Cotonou Agreement by
Republic of Guinea
| (30721)
11429/09
COM(09) 320
| Draft Council Decision concerning the conclusion of consultations between the EU and Guinea under Article 96 of the Cotonou Agreement
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| Legal base
| Articles 9 and 96 of the Cotonou Agreement; QMV
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| Department
| Foreign and Commonwealth Office
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| Basis of consideration
| EM of 7 July 2009
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| Previous Committee Report
| None; but see (26227) 16041/04, (29544) 7499/08 and (30446) 6543/09: HC 19-x, chapters 7 and 8 (11 March 2009)
|
| Discussed in Council
| 27 July 2009 General Affairs and External Relations Council
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| Committee's assessment
| Politically important
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| Committee's decision
| Cleared, but further information requested
|
Background
8.1 The Cotonou Agreement[24]
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;[25]
— participatory approaches;
— a strengthened focus on
poverty reduction;
— a new framework for economic
and trade cooperation;
— a reform of financial cooperation.
8.2 Article 96 provides 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.
8.3 On 30 March 2004 the EU decided
to open Article 96 consultations with the Government of Guinea
(GOG). 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
them in order to avoid giving them legitimacy.
8.4 Subsequent developments are set
out in our consideration of two subsequent Council Decisions,
which in 2005 began and in 2008 further extended a process of
extended political dialogue and progress monitoring. At the beginning
of this process, the GOG gave 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.
8.5 The 12-month extension resulted
from decidedly mixed political progress in the intervening years.
Then last December the then Minister for Europe reported that
the reform agenda continued to be stalled, particularly with regard
to fulfilling the key undertaking given by the Guinea authorities
— to arrange free and fair parliamentary elections —
and noted that the next monitoring mission would be in February
2009.[26]
8.6 In her Explanatory Memorandum of
4 March 2009, the then Minister for Europe at the Foreign and
Commonwealth Office (Caroline Flint) outlined a Commission Communication
concerning the opening of consultations with the Republic of Guinea
under Article 96 of the Cotonou Agreement following the bloodless
military coup d'état of 23 December 2008, saying that:
— this took place following
the death of President Conté after a long illness, when
a military junta calling itself the National Council for Democracy
and Development (CNDD) seized power and its leader, Captain Moussa
Dadis Camara, declared himself President of Guinea;
— the CNDD had suspended the
Constitution, dissolved the National Assembly and banned all political
and trade union activity;
— the coup had received widespread
popular support in Guinea. Following 24 years of President Conte's
rule many sought change. In justifying its actions the CNDD has
promised to root out corruption, update the Constitution and manage
elections before the end of 2010;
— the coup had however been
strongly condemned by the majority of the international community;
— the EU Presidency had immediately
issued a statement on 23 December calling on all parties to respect
the Guinean Constitution in the interests of the people and country
in order to ensure a peaceful transition and the rapid organisation
of free and transparent elections;
— on 31 December the UK supported
a further EU Presidency statement which had condemned all seizure
of power by force and called for:
· presidential and legislative
elections in Guinea by June 2009;
· a civilian interim government
to be set up and led by a civilian Prime Minister exercising full
executive power;
· the CNDD to become more representative
of society, acting as an advisory body only, and to disband at
the elections;
· CNDD members not to stand
in elections; and
· teams already in place at
the Ministry and National Independent Electoral Committee responsible
for arranging elections to remain in their positions.
— the EU had also expressed
its support for the positions of the African Union (AU) and Economic
Community of West African States (ECOWAS), both of whom had suspended
Guinea from their memberships.
8.7 The Communication outlined the results
of the 14-16 January 2009 EU Monitoring Mission. It recalled that,
before the coup, the EU had been monitoring Guinea's progress
against a number of benchmarks agreed by the previous regime during
Article 96 consultations concluded in 2005. The mission had met
with senior figures in the interim government and CNDD, including
the self-declared President, as well as with members of political
parties, trade unions, civil society, and the Independent National
Electoral Commission. It reported mixed progress on the EU's calls
of 31 December: an end-June date for elections did not look promising
but the prospects for elections by the end of 2009 were better;
the junta had appointed Mr Kabiné Komara, a civilian international
banker, as the new interim Prime Minister on 30 December; however,
as Mr Komara's selection of Ministers for the transitional government
comprised one third military personnel, many in key dossiers and
members of the CNDD, it was clear that the CNDD continued to hold
the reins of power. The Mission believed that international engagement
could result in changes. However, the Prime Minister seemed weak
and lacking influence on many of the "transition parameters".
The slow registration of voters was worrying and reflected a lack
of capacity. Political parties and unions remained banned.
8.8 The monitoring mission recommended:
— opening new Article 96 consultations
before the end of March 2009
— pressing for a roadmap for
elections during continued reinforced dialogue
— incorporating in the consultations
certain consensual benchmarks such as:
· creating an international
contact group on Guinea including the EU, AU, ECOWAS and UN;
· reinforcing EU and member
states' technical and financial assistance to the electoral process
and to evaluate the Independent Electoral Commission's capacities;
· ensuring macroeconomics respect
the good governance criteria and coherence with the benchmarks
of the Poverty Reduction and Growth Facility.
8.9 In her accompanying letter, the
then Minister described the military coup as a serious; Article
96 had been put in it to deal with just these sorts of cases and
there was no alternative to opening new Article 96 consultations
as a matter of urgency if it the EU wanted the Cotonou provisions
to be taken seriously. The UK had asked that language on elections
be put at the forefront of the list for the transition road map,
which needed to be detailed and specific, and that language also
included pointing out that updating the legal framework should
not delay elections. Article 96 consultations would allow the
EU to put pressure on the Guinean leadership to restore constitutional
order and ensure a peaceful democratic transition. The EU had
made its position clear, which she supported — that elections
should take place this year. Notwithstanding the Article 96 talks
the EU should make it clear that it stood ready to help fund the
elections to a significant degree. Looking ahead, the then Minister
said that the EU was a member of the International Contact Group
for Guinea (ICG-G), which was set up during the AU Summit in February
and included, among others, members from the AU, ECOWAS, EU and
UN; and the transition road map the Commission proposed to discuss
with the Guinean authorities during Article 96 consultations reflected
the ICG-G position.
Our assessment
8.10 The Committee noted its particular
interest in the Article 96 process in Guinea because the undertakings
given by the GOG were all in areas in which success, or failure,
might well have much wider lessons, or repercussions, and not
just for the Cotonou Process but also European Security and Defence
Policy; a number of other countries in the region were similarly
challenged, against a background in which the inter-relationship
between development, security and good governance was now widely
acknowledged.
8.11 As we had noted elsewhere, the
Cotonou Agreement was clear: respect for human rights, democratic
principles and the rule of law are essential elements of the partnership,
with the Commission characterising the revision of the political
components in 2005 as "strengthening the political dimension
by placing greater emphasis on effective dialogue and results";
against the yardstick set out in those last four words, we found
it difficult to find much persuasive evidence that the Article
96 process had, to use the Minister's words, led to the Cotonou
provisions being taken seriously — after over 5 years of
Article 96 engagement, Guinea seemed to be no nearer than it was
then to a functioning democratic and law-based society.[27]
8.12 Time alone would tell whether the
apparently wider process now being established would be any more
successful. In the fullness of time, we assumed that, as before,
a Council Decision would be forthcoming on concluding these consultations,
with the adoption of further benchmarks and monitoring. However,
before then, we asked for a report from the then Minister, before
the summer recess, on what had been agreed and what progress had
been made; we asked particularly like to know if elections were
put at the forefront of a detailed and specific transition road
map (including that updating the legal framework would not delay
elections) and how many of the mission's recommendations had been
implemented.
8.13 We then cleared the document.[28]
The Council Decision
8.14 In her Explanatory Memorandum of
7 July 2009, the Minister for Europe at the Foreign and Commonwealth
Office (Baroness Kinnock of Holyhead) explains that this Council
Decision proposes the closing of the Article 96 consultations
and contains a draft letter which — if the Council adopts
the Decision — will be sent from the EU to the Republic
of Guinea, informing the interim authorities of the conclusion
of consultations and setting out that the commitments specified
have been adopted as "appropriate measures" under Article
96(2)(c) of the Cotonou Agreement.
8.15 The Minister reports that the Article
96 consultations were duly opened in Brussels on 29 April; in
line with the letter to the interim authorities, the talks focused
on the transition roadmap with a view to agreeing appropriate
measures for the EU to assist the transition:
· Organisation
of free and transparent presidential and legislative elections
in 2009;
· Agreement
of all parties (CNDD, interim government, political parties, trade
unions and civil society) on the stages of the transition;
· Establishment
of a National Council for the Transition (CNT);
· Updating
of the appropriate legal framework (constitution and electoral
laws) without creating delays to the planned elections;
· A
timetable for each stage of the roadmap;
· Respect
for rule of law and human rights during the transition.
8.16 The Minister then says that, following
discussions, Guinea confirmed its commitment to the following
undertakings linked to a transition roadmap adopted by the President
of the CNDD on 28 March:
· A
return to constitutional order following the parliamentary elections
on 11 October 2009 and the presidential elections on 13 and 27
December 2009;
· The
giving of formal commitments by the President, the members of
the CNDD and the Prime Minister not to stand for election;
· Effective
establishment of the National Transition Council;
· Presentation
of a detailed budget for each electoral activity to the International
Contact Group on Guinea;
· Adoption
of measures guaranteeing respect for the principles of the rule
of law, human rights and good governance.
8.17 In response to these undertakings,
the Minister says that:
"Broadly encouraged by these
undertakings the Commission has set out 4 appropriate measures
closely tied to key stages of this roadmap. As Guinea completes
each stage the Commission proposes that the EU lifts incrementally
the precautionary measures it has applied since the coup on existing
European Development Fund (EDF) assistance, with a view to gradual
resumption of co-operation in order to assist with the transition."
8.18 She describes "the four appropriate
measures" as follows:
Establishment by Guinea of the
National Council for the Transition, with a mandate, powers and
composition agreed by the stakeholders of the transition in Guinea
— Lifting
by EU of precautionary measures adopted for ongoing projects and
programmes under the 9th and earlier EDFs, excluding
projects for the rehabilitation of public buildings and to support
decentralisation.
Publication by
Guinea of the electoral roll and the decree setting the dates
for the election and for the official opening of the electoral
campaign — Lifting
by EU of all precautionary measures under the 9th and
earlier EDFs.
Official closing by Guinea of
nominations for the presidential election (confirming that members
of the CNDD and the Prime Minister of the transitional government
are not standing) — Clearance by the EU of arrears to
the European Investment Bank (EIB) on loans from the EDF by mobilising
the 10th EDF 'B' envelope, subject to continuation of the IMF
programme and resumption of the debt relief process under the
Heavily Indebted Poor Countries (HIPC) initiative.
The holding by Guinea of free
and transparent parliamentary and legislative elections and appointment
of the elected members — Signing by the EU of the updated
and renegotiated 10th EDF CSP/NIP.
8.19 The Minister also notes that the
ICG-G, jointly led by the AU and Economic Community of West African
States (ECOWAS), with the EU participating through the Presidency
and the Commission, has been influential in securing commitment
from Guinea on this transition roadmap and in mobilising international
donor support for the elections.
8.20 Looking ahead, the Minister says
that the Commission proposes that the EU continues to monitor
the situation in Guinea closely over a period of 24 months, with
a regular review at least once every six months, and reserves
the right to amend these appropriate measures depending on how
Guinea progresses on the implementation of its commitments.
The Government's view
8.21 The Minister says that:
— it is important that the
EU plays a constructive role in assisting Guinea's transition
to constitutional order and democracy;
— she supports the Commission's
proposal;
— the four measures complement
the ICG-G endorsed transition roadmap and are designed to encourage
the interim authorities of Guinea to make further progress implementing
it;
— the measures "usefully
set out how the EU will provide assistance for the transition
as the process moves forward";
— the letter to Guinea sets
out a detailed and specific transition roadmap;
— she agrees, however, that
"the EU is wise to reserve the right to amend the measures
by a further Council Decision depending on progress and that a
24 month monitoring period is appropriate";
8.22 The Minister then says she is "concerned
that two months on from the Article 96 consultations in April
the broadly encouraging undertakings offered by Guinea then have
not been followed up by action", noting that:
— The first stages of the
roadmap have yet to be completed with voter registration currently
suspended and
— the National Council for
the Transition (CNT) has not been established
— the UK has suggested that
the letter to Guinea in the Council Decision is updated to include
language reflecting the ICG-G's most recent communiqué
of 27 June expressing concerns over the lack of progress implementing
the roadmap and pressing Guinea to create the CNT.
8.23 The Minister says that she is:
"also concerned that the interim
authorities in Guinea need to do more on their commitments to
guarantee respect for the principles of the rule of law, human
rights and good governance. In six months of military rule we
have seen increasing lawlessness, arbitrary arrests and detentions,
and a non-functioning judiciary. Political party activity remains
heavily curtailed. We welcome the language in the letter to Guinea
expressing EU concerns over these issues. The UK has suggested
that the third appropriate measure in the annex to the letter
contains additional language on ensuring that political parties
have freedom of assembly and may exercise right to campaign in
public."
8.24 The Minister concludes by recalling
the mixed nature of the Cotonou Agreement — political relations
along with development assistance and trade — and the focus
of the Article 96 process on breaches of an "essential element"
of the Agreement, such as respect for human rights, democratic
principles or the rule of law; that if no remedy to the situation
is found, cooperation with the State concerned may be suspended,
in whole or in part; and that "the military coup in Guinea
on 23 December 2008 was considered to constitute a serious breach
of the essential elements of Cotonou."
8.25 Finally, the Minister says that
Commission's proposal was discussed at the ACP Working Group in
Brussels on 1 and 3 July 2009; will pass to COREPER on 23 July
2009; and then to the Council on 27 July 2009.
Conclusion
8.26 There is, sadly, nothing surprising
in what the Minister has to say about the continuing failure of
the interim authorities to live up to commitments and, in the
meantime, the increasing lawlessness, arbitrary arrests and detentions,
the non-functioning judiciary and the heavy curtailment of party
political activity. Past performance suggests that the first six-monthly
review will produce more of the same.
8.27 In the meantime, we have no
wish to hold up this further attempt to encourage the interim
authorities to prove the doubters wrong, and clear the document.
8.28 But we note what the Minister
has to say about strengthening the language in the proposed letter
and the third "appropriate measure", and ask that she
writes to us after the Council to let us know what was decided
on the text of each of these documents.
Annex 1: 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."
24 See http://ec.europa.eu/development/geographical/cotonouintro_en.cfm
for full information on the Cotonou Agreement. Back
25
Reproduced at Annex 1 of this chapter of our Report. Back
26
See headnote: (26227) 16041/04 and (29544) 7499/08. Back
27
(26227) 16041/04 and (29544) 7499/08; see headnote. Back
28
(30446) 6543/09; see headnote. Back
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