21 Restrictive measures against Zimbabwe
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| Council Decision on extending the validity of Decision 2012/96/EU and the suspension of the application of the appropriate measures set out in Decision 2002/148/EC
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| Legal base | —
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 4 July 2013
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| Previous Committee Report | None; but see (34846) — and 34847 —: HC 83-iii (2013-14), chapter 23 (21 May 2013) and HC 86-xxxix (2012-13), chapter 8 (24 April 2013); also see (34105) — : HC 86-xi (2012-13), chapter 21 (5 September 2012)
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| Discussion in Council | To be determined
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| Committee's assessment | Politically important
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| Committee's decision | Cleared; further information requested
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Background
21.1 In February 2012, the Committee cleared two Council Decisions
incorporating the measures that the EU had taken in response to
various "stolen" elections and subsequent internal repression:
- one related to the "appropriate measures" permitted
under Article 96 of the Cotonou Agreement when an ACP country
is guilty of egregious breaches of its Article 8 "good governance"
provisions. It was introduced after the first "stolen"
election in 2002, and had been renewed annually: suspension of
budgetary support and financial support for all projects except
those in direct support of the population, in particular in the
social sectors and those in support of the reforms contained in
the GPA; not to affect humanitarian support; and to be channelled
exclusively through multilateral organisations such as the UN
and civil society organisations and not through Government channels;
- the second — the customary EU "travel
ban + asset freeze package" — was introduced in 2004,
and has likewise been renewed annually.
21.2 The full background is set out in our Report
of 22 February 2012.[62]
21.3 As noted there, a power-sharing Inclusive
Government was formed in February 2009, underpinned by a General
Political Agreement (GPA) signed by President Mugabe, Prime Minister
Morgan Tsvangirai (of the Movement for Democratic Change; MDC)
and Deputy Prime Minister Arthur Mutambara.
21.4 The 23 July 2012 Foreign Affairs Council
decided to resume full cooperation under the Cotonou Agreement
(but with a Country Strategy agreed and funded only on condition
of further reform). At that time, the Minister for Europe (Mr
David Lidington), said that the following 12 months would be critical
for Zimbabwe. His aim was clear: to support the process towards
a credible constitutional referendum ahead of free and fair elections
in 2013. The right balance needed to be struck between responding
to progress and maintaining pressure on the Government of Zimbabwe
to continue with reforms; the agreement on Article 96 was consistent
with this approach. Looking ahead, the Minister said that the
Council had also agreed that, should there be a peaceful and credible
Constitutional Referendum, the EU should respond accordingly with
suspension of the assets freeze and travel ban on all but a small
core of individuals around President Mugabe, particularly those
who would most directly influence the potential of violence in
the next election.[63]
21.5 The 18 February 2013 Foreign Affairs Council
adopted the following conclusions:
"1. The EU welcomes the agreement reached between
the political parties in Zimbabwe on a final draft constitution
and the announcement of a referendum. This step forward in the
implementation of the Global Political Agreement (GPA) adds further
momentum to the reform process and paves the way for the holding
of peaceful, transparent and credible elections later this year.
"2. Recognising the significance of these advances
the EU has agreed to suspend immediately the travel ban imposed
on six Members of the Government of Zimbabwe. The EU has also
agreed to delist 21 persons and one entity subject to restrictive
measures.
"3. The EU is encouraged by the continued commitment
of the South African Facilitation Team and the Southern African
Development Community (SADC), as expressed at the recent extraordinary
SADC Summits in Dar Es Salaam, in supporting the efforts of the
Zimbabwean parties to implement the GPA and the SADC Roadmap.
"4. As demonstrated in July 2012 and the agreement
by the Council today the EU, consistent with its incremental approach,
stands ready to further adjust its policy to recognise progress
as it is made by the Zimbabwean parties along the SADC Roadmap.
As stated in the Council Conclusions of July 2012, a peaceful
and credible constitutional referendum would represent an important
milestone justifying an immediate suspension of the majority of
all remaining EU targeted restrictive measures against individuals
and entities.
"5. Reaffirming its partnership with the people
of Zimbabwe, the EU calls on all political parties to maintain
the momentum allowing for the holding of democratic elections
later this year and to complete the implementation of the GPA
and the SADC Roadmap. The EU reiterates its commitment to political
dialogue with the Government of National Unity and to work with
any Government formed as the result of a peaceful, transparent
and credible electoral process."[64]
21.6 Such a peaceful and credible Constitutional
Referendum having been carried out on 16 March 2013, Council Decision
2013/160/CFSP and (the implementing) Council Regulation (EC) No.
298/2013 were adopted on 27 March 2013.
21.7 The Committee's consideration thereof is
set out in our most recent Reports under reference.[65]
In sum, in his Explanatory Memorandum and correspondence with
the Committee, the Minister confirmed that:
— the
ten individuals whose listings were not suspended comprise Robert
Mugabe, Grace Mugabe, and a core group of senior Zanu-PF officials
who play key roles in the operation of the security sector;
— the suspension did include a number of
individuals with connections to the diamond mining industry, including
the Minister of Mines, Obert Mpofu;
— inclusion of these individuals in the
suspension was judged consistent with the broader objectives of
using the Measures flexibly, to support the Southern African Development
Community facilitation process and to incentivise reform in the
run up to elections later this year;
— both the mining parastatal (ZMDC) and
the defence parastatal (ZDI) remain subject to Restrictive Measures;
— the continued listing of these two entities
was the result of concerted UK lobbying during the February negotiations;
and
— the active Restrictive Measures against
ZMDC and ZDI mean that restrictions will exist on all diamond
mining operations in the Marange fields until after elections
have taken place.
21.8 The Minister also noted that the majority
suspension introduced by Decision 2013/160/CFSP is valid in the
first instance until 20 February 2014 (the date by which the restrictive
measures themselves are due for renewal) but that — with
the two further crucial milestones of presidential and parliamentary
elections needing to be passed during the next six months —
it would be subject to review every three months. Since Decision
2013/160/CFSP does not expire at the three month mark, a Council
Declaration annexed to the Decision, and the Conclusions of the
Political and Security Committee[66]
of 22 March 2013, had been used to commit Member States to the
adoption of a Decision revoking the suspension at the three-monthly
review unless there is unanimous agreement that the suspension
should continue. He noted that any Member State would therefore
be able to collapse the suspension and re-activate targeted measures
in a minority of one every three months: this safeguard, he said,
enabled UK officials to ensure an appropriate response should
the situation on the ground deteriorate.
Our assessment
21.9 We presumed that the differences among Member
States about the fine tuning of these measures implied in concerted
UK lobbying to continue listing the entities, was why it was decided
to draw a veil over them via the use of a Council Declaration
rather than an overt commitment embodied in the Council Decision.
While this might be understandable from other perspectives, having
to rely upon a Ministerial assurance continued to run contrary
to the proper Parliamentary scrutiny of such measures.
21.10 However, rather than pursue this further
in this instance, we have done so via our present inquiry into
the scrutiny of European business.
21.11 In the meantime, we cleared the Council
Decision and Council Regulation.[67]
The draft Council Decision
21.12 The draft Council Decision extends, for
six months, the validity of Decision 2012/96/EU, which suspended
the application of the appropriate measures set out in Decision
2002/148/EC.
The Government's view
21.13 In his Explanatory Memorandum of 4 July
2013, the Minister for Europe recalls the agreement reached at
the 23 July 2012 Foreign Affairs Council, "in recognition
of progress on the ground, and considering wider strategic issues."
21.14 This, the Minister says:
"allowed the EU to work directly with the Inclusive
Government in Zimbabwe to develop new assistance programmes for
the benefit of the people of Zimbabwe that might come on stream
under the next European Development Fund (i.e. from 2014). This
is consistent with our broad approach to link revisions to measures
with progress on the ground. This suspension can be revoked at
any time, should member states agree unanimously to do so."
21.15 The Minister continues as follows:
"The next six months will be critical for Zimbabwe,
with elections currently set for 31 July. The date is subject
to legal challenge in Harare, and it remains a possibility that
the elections could be as late as October. Our aim is clear, we
want to support the process towards free and fair elections. To
do so, we need to strike the right balance between responding
to the reform process and maintaining pressure on the Government
of Zimbabwe to continue with those reforms. This six month proposal
is a continuation of our current policy and position to cover
the electoral period.
"It is also in line with the EU's separate Decisions
on targeted measures, agreed in March 2013, in response to the
peaceful and credible constitution in March, which suspended the
assets freeze and travel ban on all but a small core of individuals
around President Mugabe (who will most directly influence the
potential for violence in the next election).
"The suspended application of Article 96 shall
be kept under constant review. We will keep your Committees updated
with any changes. By extending the validity of Decision 2012/96/EU
we remain able to re-impose the measures at any time if necessary.
Equally if the situation improves in the light of peaceful and
credible elections the Measures could be lifted before their envisaged
expiry in February 2014.
"As set out in paragraph 3,[68]
the appropriate measures were imposed in response to specific
concerns. Although many of these continue to exist, in broad terms
there has been significant progress in a number of areas since
the formation of the Inclusive Government in 2009. It is clear
however that there has not been sufficient progress made towards
reforms in Zimbabwe since July 2012 to warrant the lifting of
'appropriate measures' at this stage and thus we believe that
the validity of Decision 2012/96/EU should be extended by six
months to cover the potential electoral period."
21.16 The Minister concludes by noting that,
"as there is inadequate time for the Council Decision to
be considered at the July Foreign Affairs Council", the Decision
will be adopted under a written procedure, which should conclude
before 7 August.
Conclusion
21.17 It is plain that much could happen
during the summer recess. We shall be meeting in September.
Contrary to our shared hopes, matters may not progress as we would
all wish. In any event, we would be grateful for an update from
the Minister no later than the end of August, with his assessment
of developments between now and then and his views on their implications
for both sets of EU measures (these, and the targeted measures
referred to above).
21.18 In the meantime, we clear this draft
Council Decision.
62 See (33645) 5820/12 and (33679) -: HC 428-li (2010-12),
chapter 12 (22 February 2012). Back
63
See (34105) -: HC 86-xi (2012-13), chapter 21 (5 September 2012)
for the full background. Back
64
Available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/135531.pdf. Back
65
See (34846) - and 34847 -: HC 83-iii (2013-14), chapter 23 (21
May 2013) and HC 86-xxxix (2012-13), chapter 8 (24 April 2013). Back
66
The committee of ambassador-level officials from national delegations
who, by virtue of article 38 TEU, under the authority of the High
Representative for Foreign Affairs and Security Policy (HR) and
the Council, monitor the international situation in areas covered
by the CFSP and exercise political control and strategic direction
of crisis management operations, as set out in article 43 TEU. Back
67
Ibid. Back
68
A reference to the Minister's Explanatory Memorandum. Back
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