Documents considered by the Committee on 15 September 2010 - European Scrutiny Committee Contents

23   EU-Niger relations

(31848) 12664/10

COM(10) 394

Draft Council Decision concerning the conclusion of consultations with Niger under Article 96 of the Cotonou Agreement

Legal baseArticles 9 and 96 of the Cotonou Agreement; QMV
DepartmentForeign and Commonwealth Office
Document originated26 July 2010
Document deposited30 July 2010
Basis of considerationEM of 1 September 2010
Previous Committee ReportNone; but see (30999) 14257/09: HC 5-iii (2009-10), chapter 14 (9 December 2009); also see (31447) —: HC 428-i (2010-11), chapter 1 (8 September 2010), (31532) 9014/10: HC 428-i (2010-11), chapter 54 (8 September 2010), and (26227) 16041/04, (29544) 7499/08: HC 19-x (2008-09), chapter 7 (11 March 2009)
To be discussed in Council27 September 2010
Committee's assessmentPolitically important
Committee's decisionCleared, but relevant to the European Committee debate on the revision of the Cotonou Agreement


23.1  Under Article 96 of the 2000 Cotonou Agreement between the EU and 77 ACP countries, either party may invite the other for consultations if it considers that the other has failed to respect the "essential" political elements in Article 9: human rights, democratic principles and the rule of law, or to provide good governance. Strengthening this political dimension was one of the main changes introduced in the 2005 revision of the Agreement.

23.2  The previous Committee took a particular interest in the Article 96 process because the undertakings given by the other party are normally 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 CSDP — there being a number of ACP countries demonstrating similar democratic failings against a background in which the inter-relationship between development, security and good governance is now widely acknowledged.

23.3  The Cotonou Agreement is 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". It is against the yardstick set out in those last four words that the previous Committee generally found it difficult to find much persuasive evidence that the Article 96 process has led to the Cotonou provisions being taken seriously by the other party, with adverse developments being reversed and a functioning democratic and law-based society being restored.[102]

The earlier Commission Communication

23.4  The Commission Communication that the previous Committee considered on 9 December 2009 was the first step toward potential Article 96 consultations with Niger, due to increasing levels of instability in the lead-up to elections. The Communication set out the Commission's concerns and (as is customary at that stage of the process) also contained a draft letter to the President of Niger expressing these concerns; which, once approved by the Council, was to be conveyed to him.

23.5  In his letter of 23 November 2009 and Explanatory Memorandum of 25 November 2009, the then Minister for Europe at the Foreign and Commonwealth Office (Chris Bryant) said these concerns were also held by the UK Government. He supported the response recommended in the Communication as Article 96 consultations would allow the EU to put pressure in coordination with the Economic Community of West African States (ECOWAS) and the African Union on the Nigerien leadership to return to democratic and constitutional political processes. The EU had made clear that inclusive mediation talks must take place as soon as possible between political adversaries to peacefully resolve the current crisis. President Mamadou Tandja's party won controversial legislative elections on 20 October with a clear majority; but President Tandja had undemocratically dissolved the previous parliament and Constitutional Court to effect changes to the Nigerien constitution, thus allowing him to stand for a third presidential term in contradiction of the original constitution. Opposition parties boycotted the elections in protest at the constitutional amendment, and demanded a return to the original constitution. The Economic Community of West African States (ECOWAS) had suspended Niger from the organisation in response to the elections, and refused to recognise the result. The African Union had since commended the ECOWAS decision. ECOWAS had also recently appointed the former Nigerian President Abusalami Abubakr[103] as a mediator between the government of Niger and opposition parties, and there had already been a number of rounds of talks under this process. The then Minister supported these efforts.

23.6  The then Minister for Europe also explained that the EU had held talks with the Nigerien authorities as part of the enhanced political dialogue in accordance with Article 8 of the Cotonou Agreement; issued a firm statement expressing deep concern prior to the referendum on constitutional amendments held on 4 August; and an additional démarche ahead of the legislative elections on 20 October calling for a halt to voting and a return to democratic principles. Both statements referred to the possibility of consultations under Article 96 as a necessary reaction to violations of essential elements of the Cotonou Agreement.

23.7  The then Minister's letter described the President of Niger's manipulation of the constitution and institutions of the state in his attempts to seek an extension to his term in office as "a worrying setback to the adherence of democratic principles in Africa." He again commended the African Union and ECOWAS attempts to forge a negotiated resolution to the current crisis and reiterated the need to "keep up the pressure on Niger through the Article 96 process."

23.8  The previous Committee noted that this was far from the first "worrying setback to the adherence of democratic principles in Africa"; felt that, given that the Nigerien authorities had already ignored the threat thereof, it was moot as to how much leverage can be applied by the Article 96 process; but nonetheless had no wish to hold up the process; and cleared the Communication.

23.9  It also asked to hear further from the then Minister as to how this stage of the process transpired (bearing in mind that, at that time, the Nigerien authorities had yet to respond definitively to the Commission invitation) and, in due course, what the outcome was of the EU's and the regional organisations' endeavours and his assessment of the impact of the Article 96 process on it.[104]

The Minister's letter of 1 September 2010

23.10  In his letter of 1 September 2010, the Minister for Europe (David Lidington) says that

—  consultations began between the European Union and the Government of Niger of former President Mahmadou Tandja on 8 December 2009 but were interrupted by a coup d'état of 18 February 2010;

—  the European Union has now proposed to close consultations with the Government of the Republic of Niger under Article 96 of the Cotonou Agreement and reach a Council Decision.

23.11  He continues as follows:

"Former President Tandja had repeatedly manipulated the constitution and institutions of the state (including the dissolution of the previous Constitutional Court and Parliament) in his attempts to extend his term in office. His actions represented a disquieting violation of democratic principles in West Africa and were met by censure from the African Union, ECOWAS and other international partners.

"However, the coup d'état of February this year installed a transitional administration, who have made encouraging commitments to restore constitutional democratic order and agreed a timetable that will culminate in presidential elections in January 2011. The draft Commission decision proposes to resume incrementally EU development assistance in response to democratic progress by the Government of Niger as outlined in the timetable.

"This decision comes at time of severe humanitarian crisis for the people of Niger with over half of the population, in what is already the poorest country in the world facing moderate to severe food shortages as a result of drought leading to rising levels of malnutrition. Emergency humanitarian assistance is exempt from the restrictions of Article 96. The EU will continue to provide humanitarian assistance. In addition the British Government has also already given £13 million in bilateral emergency support. A gradual release of European development assistance in response to political progress will hopefully go even further towards accelerating the recovery of ordinary Nigeriens."

The proposed Council Decision

23.12   Against this background, the Council Decision proposes the ending of the formal consultations process and sets out a series of undertakings which it expects the transitional administration to meet with a view to a gradual resumption of EU development assistance. The essence of the proposal is set out in a letter from the EU to the President of the Supreme Council for Restoration of Democracy and the Prime Minister, which forms part of the Council Decision.

23.13  It notes that, and where appropriate welcomes:

  • consultations opened on 8 December 2009;
  • a coup d'état took place on 18 February 2010, which the EU condemned;
  • a second round of consultations took place on 26 May, following which EU representatives expressed their willingness to propose to the EU Council appropriate measures to support the transition under way in Niger towards a return to constitutional order, as announced by the Niger authorities;
  • the announcement of: the establishment of pluralist institutions for the transition, representing all political elements in Niger, the consensual adoption of an electoral code and the establishment of a National Independent Election Commission (CENI);
  • the adoption of a roadmap which, by means of a number of electoral steps, paves the way for the establishment of a new constitutional framework and new democratically elected authorities;
  • the commitment made by members of the Supreme Council for Restoration of Democracy (CSRD) and the civilian government established in February 2010 to manage the transition, not to stand for election and to hand over power to the elected civilians at the end of the transitional period, planned for March 2011;
  • the following undertakings put forward at the meeting, which it regards as especially important:

¾  the adoption of basic texts by the CSRD;

¾  the organisation of a constitutional referendum on the basis of those texts;

¾  the holding of local, parliamentary and presidential elections by March 2011;

¾  respect for fundamental rights and civil liberties, including freedom of action for political parties;

¾  the decriminalisation of press offences and a guarantee of independence for regulatory bodies and of access to information;

¾  a commitment to sound economic and financial management throughout the transition.

23.14  On the basis of these "broadly encouraging" undertakings, the EU has decided to adopt the appropriate measures listed in the annexed commitments table under Article 96(2)(c) of the Cotonou Agreement with a view to the gradual resumption of cooperation in order to assist in the transition. As well as continuing to finance humanitarian and emergency operations in direct support of the people of Niger, the EU will finance measures to support the political transition and help end the crisis, which may include fresh aid for the preparation of the parliamentary and presidential elections may be provided. As part of the procedure under Article 96 of the Cotonou Agreement, the European Union will continue to monitor the situation in Niger closely over a period of 12 months, via an enhanced dialogue under Article 8 of the Cotonou Agreement in order to support the transition process, regular reviews and a first monitoring mission within no more than six months. The EU also reserves the right to amend the 'appropriate measures' in the light of progress in the implementation of commitments.

The Government's view

23.15  In his Explanatory Memorandum of 1 September 2010, the Minister for Europe elaborates upon the events of 2009, when then-President Tandja attempted to extend his mandate unconstitutionally to a third term:

"The Nigerien Parliament was dissolved, the Constitutional Court dismissed and political opponents intimidated before a questionable constitutional referendum endorsed a 3-year presidential extension. EU development assistance to Niger worth some €450m under the 10th EDF was duly frozen as the essential elements (human rights, democratic principles and the rule of law) of the Cotonou Agreement had been violated. However humanitarian funding remained"

23.16  The Minister then says that, although "an international chorus" condemned the military coup d'état that deposed then-President Tandja:

"paradoxically it offered Niger an opportunity to return to democratic order. The military junta — the self-titled Supreme Council for the Restoration of Democracy (CSRD) — have committed to a timetable for elections and installed transitional authorities to oversee the process."

23.17  The Minister then explains that:

—  the UK has "begun prudent re-engagement with Nigerien authorities to encourage a process of transition address pressing humanitarian, security and migration issues";

—  EU engagement has adopted an identical approach, based on the common recommendation of EU Heads of Mission and the AU/ECOWAS Special Representative that the CSRD are credible interlocutors who have acted in good faith thus far;

—  he agrees with the assessment;

—  many of the incremental steps for the resumption of EU development funding, as laid out in the transitional timetable agreed by the CSRD, have already been enacted by the CSRD.

—  funding for the development assistance under the 9th and 10th EDF that will gradually resume to Niger if and when they meet the benchmarks outlined in the Council Decision Annex has already been programmed into the EDF budget and therefore will not draw additional resource.

23.18  The Minister concludes by noting that Member States have been invited to comment on the proposed Council Decision by 1 September 2010; that no substantial amendments are anticipated; but that a further memorandum will be submitted if significant changes are made.


23.19  At our last meeting we considered the latest revision of the Cotonou Agreement, which we recommended for debate in European Committee B. There, we noted both the previous Committee's concern about the effectiveness of the Article 96 process and also the report from the relevant then Minister in the DFID that, during the revision negotiations, this notwithstanding, the ACP partners had sought to have the present provisions watered down.[105]

23.20  The present case is perhaps an indication that, its defects notwithstanding, the Article 96 process is better than no process at all. That said, a similar Council Decision concluding Article 96 consultations with Madagascar, which we also considered at that meeting, demonstrated the limitations of the process, in that development assistance was being suspended in response to the continuing failure of those in power there to respond appropriately.[106] We can but hope that, in this instance, those in power in Niger will properly repay the faith invested in them and produce an outcome that enables normal relations to be resumed.

23.21  In the meantime, we clear the proposed Council Decision, which we consider relevant to the proposed debate on the latest revision of the Cotonou Agreement.

102   See headnote: (26227) 16041/04 and (29544) 7499/08 deals with what the previous Committee considered to be one of the most egregious examples, viz. Guinea. Back

103   Abubakar was sworn in as president after the death of military dictator Abacha; he promised to hold elections within a year and transfer power to an elected president (Nigeria had been ruled by military leaders since a 1983 coup.) It was during his leadership that Nigeria adopted its new constitution on 5 May 1999, after which Abubakar transferred power to elected president Obasanjo on 29 May 1999.


104   See headnote: (30999) 14257/09: HC 5-iii (2009-10), chapter 14 (9 December 2009). Back

105   See headnote: (31447) -: HC 428-i (2010-11), chapter 1 (8 September 2010). Back

106   See headnote (31532) 9014/10: HC 428-i (2010-11), chapter 54 (8 September 2010). Back

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