European Scrutiny Committee Contents

54 Breach of Cotonou Agreement by Madagascar



COM(10) 181

Draft Council Decision concerning the conclusion of consultations with the Republic of Madagascar under Article 96 of the ACP-EC Partnership Agreement

Legal baseArticles 8, 9 and 96 of the Cotonou Agreement; QMV
Document originated26 April 2010
Deposited in Parliament25 May 2010
DepartmentForeign and Commonwealth Office
Basis of considerationEM of 24 May 2010
Previous Committee ReportNone; but see (30637) 9790/09: HC 19-xviii (2008-09), chapter 19 (3 June 2009); (26227) 16041/04 and (29544) 7499/08: HC 19-x (2008-09), chapter 7 (11 March 2009) and (30446) 6543/09: HC 19-x (2008-09), chapter 8 (11 March 2009)
To be discussed in Council25 May 2010
Committee's assessmentPolitically important
Committee's decisionCleared; relevant to debate in European Committee B on the latest revision of the Cotonou Agreement


54.1 The Cotonou Agreement 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;[227]

—  participatory approaches;

—  a strengthened focus on poverty reduction;

—  a new framework for economic and trade cooperation; and

—  a reform of financial cooperation.

54.2 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, democratic principles and the rule of law, 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.

54.3 The revised Agreement of 2005 makes provision for what the Commission describes as "a more systematic and formal dialogue under article 8 in relation to the three essential elements [which] must now be held before the consultation procedure under Article 96 can be launched — except in cases of special urgency."[228]

54.4 Following the unconstitutional transfer of power in Madagascar on 17 March 2009, the Commission proposed that the Commission and the Council send a joint letter inviting the Republic of Madagascar to hold consultations under Article 96 of the Cotonou Agreement, and asked the Council to agree a draft letter.[229]

54.5 The then Minister for Europe at the Foreign and Commonwealth Office (Caroline Flint) set out the background in her Explanatory Memorandum and letter of 22 May 2009. She noted that, in less than a year, Africa had seen unconstitutional transfers of power in Guinea, Mauritania and, now, Madagascar, as well as the irregular transfer of power in Guinea Bissau. She explained that the coup in Madagascar resulted from tensions between President Ravalomanana and the opposition, led by the former Mayor of Antananarivo (the capital) Andry Rajoelina; and that, after involving the military and the Malagasy Constitutional Court, Rajoelina had set himself up as leader of the "High Transitional Authority" (HTA).

54.6 All of this was immediately condemned by the international community, including the African Union (AU), Southern African Development Community (SADC), the US and the EU. An International Contact Group (ICG) was formed (with UK participation, as a P5 member) to try and agree a political roadmap for the way forward. In parallel, EU Member States had agreed to open Cotonou Agreement Article 96 consultations and temporarily suspend all budgetary aid provided for in the national indicative programmes of the 9th and 10th European Development Fund (EDF).

54.7 The Article 96 consultations would be consistent with the ICG approach, to which there was an explicit reference in the draft Article 96 letter. The consultations would "offer the opportunity to promote democratic principles in Madagascar and to demonstrate the importance the EU attaches to the 'essential elements' of the Cotonou Agreement". The unconstitutional transfer of power "demanded a swift and coordinated international response, with the EU co-ordinating with other international pressure on the coup leaders." In Madagascar, there was "currently a sense of drift", with the lives and livelihoods of ordinary people disrupted by the lack of effective government, unrest on the streets and the threat of renewed violence. It was important that the international community responded speedily and robustly to ease the situation of some of the poorest people in the world. Issuing the letter announcing the start of Article 96 consultations at the earliest opportunity "would help to break the current stalemate and send a strong signal of the seriousness of the EU's intent to help Madagascar back to constitutional democracy and the rule of law."

The previous Committee's assessment

54.8 The previous Committee pointed out that the Cotonou Agreement is clear — respect for human rights, democratic principles and the rule of law are essential elements of the partnership — and that, on the Agreement website, the Commission characterised the revision of the political components in 2005 as "strengthening the political dimension by placing greater emphasis on effective dialogue and results".

54.9 It went on to note discussion in March with the then Minister about developments in Guinea commenting that, against the yardstick set out in those last four words, and despite her valiant efforts to the contrary, it found it difficult to find much persuasive evidence that the Article 96 process had had much significant success in facilitating sustained democratic development. On the contrary: after over five years engagement, Guinea seemed to be no nearer to becoming a functioning democratic and law-based society; the first round of consultations, begun in response to the events of 2003, had produced a host of commitments on restoring democracy and the rule of law, notwithstanding which fresh Article 96 consultations had been initiated in response to the latest military coup.[230]

54.10 Against that unhappy background, it concluded by expressing the hope that Madagascar would be able to demonstrate that the Article 96 process could be made to work, and in the meantime cleared the document.[231]

The Council Decision

54.11 This Council Decision proposes to end the consultations and to suspend all development funds under the 9th and 10th EDF.

54.12 As the Minister for Europe at the Foreign and Commonwealth Office (Mr David Lidington) explains in his Explanatory Memorandum of 24 May 2010, although the 120 day deadline for the closure of consultations expired in November 2009, the EU agreed to allow negotiations to remain open while it looked as if progress was being made; however, since then there has been no political agreement between the parties, mainly due to opposition from the HTA (the coup regime). Consequently, the Commission has put forward a proposal to close the consultations and to adopt appropriate measures. This would formalise the temporary suspension of the EU's budgetary support. Humanitarian and emergency aid would not be affected. The European Commission would also be able to implement certain projects and programmes that directly benefit the population. The normal political dialogue between Madagascar and the EU provided for in Article 8 of the Cotonou Agreement will be maintained and conducted as far as possible in co-ordination with the ICG.

54.13 The Minister points out that the Annex to the Decision sets out "clear steps that need to have been taken to step up Article 8 of the Cotonou Agreement, and to consider reversing the appropriate measures, e.g. resuming EU development funding", including:

—  a consensual agreement for a transitional government;

—  the setting of a clear roadmap towards elections, which is acceptable to the parties involved and which allows for a free and fair election campaign; and

—  fair elections, recognised as such by the international community, and which can provide democratic legitimacy to a new government.

54.14 The Commission proposes that these measures should be adopted for an initial period of twelve months, but reserves the right to examine and revise them in the light of any developments, positive or negative, in Madagascar.

54.15 The Minister also says that he expects the Commission shortly to submit a proposal for Member States at the EDF Management Committee to identify which projects and programmes the EC will undertake that directly benefit the population and how this would be funded from the EU budget.

54.16 Finally, the Commission's proposal having been discussed at the African, Caribbean and Pacific (ACP) working groups in Brussels on 27 April and 4 May 2009, the Minister says that he expects it be passed to the Council on 25 May 2010.

The Government's view

54.17 The Minister goes on to recall that, Rajoelina having announced that he would amend the constitution (at 34 he was six years too young to run for president) and hold elections within 18-24 months, and having unilaterally set up his HTA, the HTA has governed as a de facto authority ever since, despite being unrecognised by the international community. He says that the situation in Madagascar remains bleak: already with some of the lowest Human Development Index indicators in the world (overall 145th from 177 countries); social and economic indicators are continuing to decline. He also notes that, on several occasions, the ICG has brought together Rajoelina and Ravalomanana, as well as two other former Malagasy Presidents Ratsiraka and Zafy (each of whom leads a political movement in Madagascar), leading to the Maputo agreements of August 2009, and the Addis Ababa Additional Act of November 2009, which set out a roadmap for a consensual transitional government leading to inclusive and transparent elections monitored by the international community. He continues as follows:

"But in December 2009 Rajoelina unilaterally abandoned those agreements, and set out plans for the HAT to arrange elections in March 2010 without the involvement of the other parties.

"Due to a continued lack of progress, largely due to opposition from the HAT, on 17 March 2010, the AU announced sanctions against 109 Malagasy political figures, including all of the HAT and others close to Rajoelina.

"Sanctions include a travel ban within the AU, the freezing of assets in African banks, and diplomatic isolation. The AU has urged international partners to support the decision and refrain from any activity which would undermine its actions.

"The French and South Africans hosted the leaders of the four Malagasy parties in Pretoria from 26-28 April 2010. Three days of meetings appear to have produced few results, but it is possible the parties may return to Pretoria later in May."

54.18 Against this background, the Minister judges that closure of Article 96 consultations is the right next step for the EU, so as "to increase pressure on the Malagasy parties to reach a consensual and transparent solution … [and] also send a signal to other ACP states that the EU will act in response to coups and that the EU will use the Cotonou Agreement to demonstrate its commitment to democracy in Africa." He notes that the closure of Article 96 consultations does not prevent the EU from engaging with the parties in Madagascar, and the decision on suspension of development aid can be reviewed if there is progress towards a solution (viz., the Commission's benchmarks). He concludes thus:

"On 12 May 2010, Rajoelina announced he would not stand in the possible presidential elections in November. This move may open the way to a solution to the crisis. But Rajoelina has not honoured previous promises and it is too early to use his announcement as a reason not to close Article 96 consultations at this time."


54.19 Our predecessors' hope that Madagascar would in some way break the mould was, sadly, in vain.

54.20 On a number of occasions, usually involving military coups or violence by military regimes, development cooperation has been suspended, consultations have been entered into, benchmarks have been agreed, progress has been monitored — and the impact has been questionable. Even so, as noted elsewhere in this Report in our consideration of the latest quinquennial revision of the Cotonou Agreement, the then Minister at the Department for International Development (Mr Gareth Thomas) makes clear that the Commission found itself resisting requests for further changes by the ACP that would have weakened the effectiveness of Article 96 or prolonged the process. This is discouraging, to say the least.

54.21 We now clear the Council Decision, which we consider relevant to the debate in the European Committee on the revision of the Cotonou Agreement that we have recommended.[232]

54.22 In so doing, the Committee recognises that the general election and consequent lack of a European Scrutiny Committee militated against the Minister withholding agreement to this Decision until it had been scrutinised, and does not object, on this occasion and in these circumstances, to his agreeing to its adoption prior to scrutiny.

Annex: The political dimension of the Cotonou Agreement


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.


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.


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.


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."

227   Reproduced as the Annex of this chapter of our report. Back

228   See for the full background to and text of the Cotonou Agreement.  Back

229   Reproduced at Annex 3 of chapter 19 of the then Committee's Report of 3 June 2009; see headnote. Back

230   See headnote: (26227) 16041/04 and (29544) 7499/08: HC 19-x (2008-09), chapter 7 (11 March 2009) and (30446) 6543/09 HC 19-x (2008-09), chapter 8 (11 March 2009). Back

231   See headnote: (30637) 9790/09: HC 19-xviii (2008-09), chapter 19 (3 June 2009). Back

232   (31447); see chapter 1 of this Report. Back

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